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MS sued over Windows Update tech

MS sued over Windows Update tech

BackWeb technologies is claiming that Microsoft was fully aware of the company's patents when it introduced BITS into Windows Update.

Microsoft has found its Windows Update service the target of a patent dispute, with Israeli software company BackWeb Technologies looking for a payout.

According to an article over on InfoWorld, the company is claiming that Microsoft's Background Intelligent Transfer Service – the system by which file transfers are intelligently throttled so as not to choke other, real-time network tasks – infringes four patents granted to BackWeb Technologies by the US Patents and Trademarks Office between 1999 and 2003.

In a filing with the San Fransisco federal court late last week, BackWeb Technologies alleged that their patents – filed to protect a product the company called Transparent Update – cover “unique and novel methods and processes for transmitting digital information in background mode over a communications link between a computer network and a local computer and throttling the transfer speed to create minimal interference with other processes communicating over a communications link.” While a trifle verbose, the wording certainly covers the intentions of Microsoft's BITS – and if upheld by the court, could see the software giant forced into a large payout, as the technology is distributed with every copy of Windows XP, Vista, Server 2003, and Server 2008 sold.

As if that wasn't enough, changes Microsoft made to BITS for its third revision – in particular functionality that allowed for a psuedo peer-to-peer networking system to transfer parts of updates to machines on the same subnet to save WAN bandwidth – allegedly infringe another of BackWeb's patents, this time on a technology for “distributing data packages across a hybrid peer-to-peer network.

Seeking an injunction against Microsoft, BackWeb is also claiming that the company was well aware of the patents before it started distributing BITS with Windows XP – and asks the court to triple any damages awarded as a punitive measure. So far, Microsoft has not commented on the proceedings.

Do you think that Microsoft might have trod on BackWeb Technology's toes when producing the BITS technology for Windows Update, or is BackWeb simply looking for a hefty payout from the biggest target in tech? Share your thoughts over in the forums.

23 Comments

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Venares 25th March 2009, 15:20 Quote
GO GO Patent Trolls.
Isnt this the 3rd or 4th one this month??
BlackMage23 25th March 2009, 15:21 Quote
So why did it take them 6 years to bring this to court?
ChaosDefinesOrder 25th March 2009, 15:30 Quote
This is not a patent troll - that patent is VERY specific, and the company actually has a product that uses the patented technology. Patent trolls, almost by definition, grab deliberately vague patents and never market the IP, simply waiting for someone else to make something that could possibly in-some-way-if-you-tilt-your-head-slightly-to-the-side be considered to fall under the patent description.

The issue here is whether Microsoft was aware of the patents or not, and as BlackMage23 says, why it took them so long to bring it to court...
Arkanrais 25th March 2009, 15:35 Quote
Another day, another patent troll.
I'm not getting any popcorn to watch this. hell, I'm not even getting a glass of water.
I'm sure it's been said around these parts before, but I think patent trolls should be forced to actually put some effort into creating the things they patent or risk having said patent thrown out and fed to their dog.

Edit: the above comment is probably right, but buggered if I'm going to research (however small) probable patent trolls at 3:30am.
tank_rider 25th March 2009, 15:41 Quote
Man I wish everyone would actually read the article before spouting complete B$ in the comments section, it's not big and it's not clever.

I'd say good luck to them, they do clearly have a product that utilizes the technology and it's effectively being trodden on, in effect MS should be paying a license fee for each copy of windows it sells.

What do you think will happen? MS buy up the company so they acquire the patent themselves?
craigey1 25th March 2009, 15:44 Quote
I thnk patents on technological ideas shouldn't even exist. I can understand the need for patenting designs & products, but patenting a process or an idea just seems to stifle creativity & means people have to find 200 ways to do something, because the other 199 are patented.
UncertainGod 25th March 2009, 15:52 Quote
Regardless of what you think of software patents in general (and for the record I am very firmly against) these guys really appear to have a strong case.
Kúsař 25th March 2009, 16:15 Quote
Things like this should have never ever got patented. I'm 100% sure MS didn't steal their work but developed their own technology. Why should MS pay a single $ for such an easy idea? That's ridiculous...
Shuriken 25th March 2009, 16:30 Quote
While it seems like a legit case, I find it hard to believe this company didn't notice this when Microsoft first shipped XP.

Seems like they were sitting on the potential law suit so they could get a bigger payout once Microsoft had shipped millions of copies.

I don't agree that software shouldn't be patentable though, as a developer myself, I'd hate to see someone else rip off my idea and make a killing on it. It is suprisingly hard (at least in the UK) to patent software as it is. (you have to prove your software has at least one 'non-obvious' step, of course non-obvious is open to interpretation.)

I'm currently in the process of trying to patent my TripCost online app, but whether the non-obvious steps involved in the algorithm are considered non-obvious enough remains to be seen. :(
mclean007 25th March 2009, 16:45 Quote
Quote:
Originally Posted by Shuriken
I'm currently in the process of trying to patent my TripCost online app, but whether the non-obvious steps involved in the algorithm are considered non-obvious enough remains to be seen. :(
A nice little web app, but I don't see how it is patentable - you have a database of cars by make and model, with fuel efficiency (miles per litre would do the trick) data for each, then you use Google Maps to calculate mileage, divide one by the other, and multiply by fuel price. Where is the novel step that would not be obvious to an informed third party?

Don't get me wrong, I like the app, I just don't see a justification for its patent protection.
glaeken 25th March 2009, 16:47 Quote
Quote:
Originally Posted by tank_rider
Man I wish everyone would actually read the article before spouting complete B$ in the comments section, it's not big and it's not clever.

I'd say good luck to them, they do clearly have a product that utilizes the technology and it's effectively being trodden on, in effect MS should be paying a license fee for each copy of windows it sells.

What do you think will happen? MS buy up the company so they acquire the patent themselves?

Microsoft should only pay license fees if they used the same algorithms, which is probably unlikely. The only thing the patent covers according to the article is an idea, which is backed by a product. But there are many, many ways to achieve the same goals without using the same algorithms.
dyzophoria 25th March 2009, 16:48 Quote
yeah, I agree with everyone - why did it just take them til now to realize that then?
DXR_13KE 25th March 2009, 18:29 Quote
i hate how patents work and how long they last....
Shuriken 25th March 2009, 18:48 Quote
Quote:
Originally Posted by mclean007
A nice little web app, but I don't see how it is patentable - you have a database of cars by make and model, with fuel efficiency (miles per litre would do the trick) data for each, then you use Google Maps to calculate mileage, divide one by the other, and multiply by fuel price. Where is the novel step that would not be obvious to an informed third party?

Don't get me wrong, I like the app, I just don't see a justification for its patent protection.

While you're mostly right in your analysis, there's quite a bit (a couple of hundred lines of code) that goes on between sending the trip information to google maps and getting the price, which serves to give more accurate, real world results (manufacturers MPG ratings tend to be a bit optimistic) Thats what I'm trying to patent. Thanks for the kind works though :)
cpemma 25th March 2009, 19:38 Quote
Quote:
Originally Posted by DXR_13KE
i hate how patents work and how long they last....
You would not say that if you'd just invented something undeniably new in the world, like Velcro or a new form of transistor. Especially if you or your company had ploughed lots of time and money into the idea. Only ignorant peasants can afford to be communists.
Quote:
Patent: A patent protects a new invention by giving the owner the right to prevent others from making, using, importing or selling the invention without their permission.
ie, "ripping you off".
n3mo 25th March 2009, 19:52 Quote
Well, Microsoft built Windows on "borrowed" ideas and technologies so it was just a matter of time before somebody sues them about something important, this case is especially clean because the company clearly has software actually using the technology in question. Not actually a big deal for Microsoft, they can afford to buy themselves the whole court and get off the hook easily. That's how they roll, unfortunately.
sui_winbolo 25th March 2009, 19:55 Quote
Oh get real, just another small business trying to get rich.
dicobalt 25th March 2009, 20:21 Quote
Today Backweb is used by many software companies because they are too lazy to write their own update routines, seems safe enough. However, Backweb used to peddle their software with spyware functionality in it. I hope that Microsoft tears them a new one with a counter suit.
cpemma 25th March 2009, 21:38 Quote
Quote:
BackWeb is also claiming that the company was well aware of the patents before it started distributing BITS with Windows XP – and asks the court to triple any damages awarded as a punitive measure.
Strikes me a programmer, part of a team working on a large project, could be tempted to pinch a neat routine he's come across. Brownie points for him at the time, doesn't mean anyone else knows, especially not the boss.

And there's a limit to how deep a patent search can go, particularly in a field like software routines.
Quote:
Originally Posted by n3mo
Well, Microsoft built Windows on "borrowed" ideas and technologies
'Reverse engineering' is allowed or AMD and very many other companies would not exist.
perplekks45 25th March 2009, 21:49 Quote
Steam uses a similar system, so does Adobe, Java, ...
More law suits coming? Seriously...
Anakha 26th March 2009, 07:55 Quote
Erm... IIRC BITS was in Win2k, before XP.

Oh, and AMD have an official license from Intel to use their patents. Without that, they'd be in a world of IP hurt (As Intel are currently threatening them).
Sebbo 26th March 2009, 15:17 Quote
if this case targeted more than just Microsoft, i'd say good luck to them. however, as they're only targeting Microsoft and ignoring a great number of companies who use similar systems for updates (Adobe, Java as mentioned, Blizzard also have a system for pushing update files without choking the bandwidth, and i'm sure there are many others) then i simply hope they fail. One company doesn't deserve to be targeted simply because they'd give a larger payoff.

As far as my view on patents go, i'm kinda on the fence. On one hand I agree that it should simply be limited to algorithms and very specific designs. On the other however, I would like any ideas I have to be mine until I've had a fair go at implementing them properly - I certainly wouldn't like someone else with better resources than me to take the idea and develop it before I can.

According to wiki, BITS didn't show in 2k until 2003 in SP3, after it was introduced in XP in 2001 - also found at http://msdn.microsoft.com/en-us/library/aa363167.aspx (minus the dates). There's a question of how long before the release of XP had Microsoft been working on BITS, and when any patents of theirs relating to BITS were also filed?
Top Nurse 7th October 2009, 22:28 Quote
Microsoft has a long history of utilizing the use now and pay later plan. A family member sued Bill Gates personally a few years ago over his deep sixing a DOS program that had network capabilities and IIRC they won close to a billion dollars when it was all said and done.

However, in this case you have to wonder whether independent research can come about and discover similar properties given that this field is somewhat limited in scope. One thing for sure is that Microsoft isn't being sued because they are a bit player in the grand scheme of things.
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