Burst.com edges Apple in pre-trial rulings

[AppleInsider]

Apple Inc. may be faced with an uphill battle in its patent litigation with Burst.com after the courts issued a Markman Claim Construction Memorandum that largely sided with its opponent.

Also known as a Markman Hearing and based on a crucial 1996 Supreme Court decision by the same name, a Memorandum is a pre-trial ruling that follows a courthouse debate over the exact meanings found inside a given patent. Its aim is to allow the Court to focus on the core of a patent during trial rather than dwell on its language, which can often bog down disputes with technicalities.

In some situations, however, Markman results have virtually ended trials before they began by almost entirely destroying one side's arguments.

In the case of Burst.com versus Apple, a 48-page Markman decision issued on Tuesday could pose a similar danger to Apple's defense against an April 2006 countersuit by validating many of Burst's concerns over computer media transmission patents, all four of which may cover Apple's iPod and iTunes software.

A Northern District of California judge handling the case has found that about two thirds of Apple's arguments made in the hearing would have created overly narrow definitions of key terms, artificially excluding many of Burst's general but potentially relevant points.

In multiple instances the iPod maker was limiting the patent's relevance to particular hardware or methods when it applies to much more, according to the judge. In one example, the Markman Memorandum notes that Apple's interpretation of a processor for "editing means" is so exacting that it insists only certain Intel, Motorola, and Texas Instruments chips would be valid for the patent, despite their use only as rough examples.

One of the central aspects of the decision was the concept of the "burst time period," a crucial element for Burst's streaming media business and for the patents at hand. *Where Burst said its definition literally applied to the time needed for sending transmission bursts over a network more quickly than in real time, Apple's interpretation of the same term would only have applied burst time to a distinct compression method used to make those transmissions. *This argument would have turned numerous claims "nonsensical" all by itself, the judge said.

Some interpretations nevertheless favored Apple. The California-based firm won preference for some of its own definitions during the courtroom discussion, including the right to exclude auxiliary digital ports as transmitters -- which may affect the iPod's Dock Connector -- as well as ruling that metadata and playlists could not count as editing software.

Still, the mixed reactions by the judge to Apple's legal arguments will create a major obstacles for the consumer electronics firm going forward.

Burst's case is helped by its track record in past lawsuits, as the media streaming firm successfully won a settlement from Microsoft in 2005 over claims that Windows Media Player violated similar patents. The deal netted Burst a $60 million payout in exchange for a non-exclusive license for Microsoft to use Burst technology.

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[backtomac]

So MS payed 60 mil to settle. Why is Apple even fighting this in court? Pay 'em off and move on. You've got bigger fish to fry.

[SpinDrift]

Ah for pity's sake.. Not another one!

[DaveGee]

Sorry to be a bit cold here but... As Ye Sow, So Shall Ye Reap! Apple has a propensity to use and abuse the US legal system as it's own private billy club to scare and shock people into submission then they shouldn't be afraid when said club finds its way straight up its ass...

[mark2005]

The MS settlement may have had more to do with MS having been caught deleting emails rather than with the validity of the patent. During the period leading up to the MS trial, Apple staff were quoted as saying Burst's technology was nothing new.

[lssmit02]

Defining the terms is only the first step in the process of determining whether there is infringement, which is done early in the litigation. The court also has to determine validity of the patent. On the issue of validity, the recent U.S. Supreme Court's KSR ruling affords Apple an opportunity to challenge the invention based on the fact that it is obvious to a person skilled in the art. I think this is the patent (Burst.com is not listed as an assignee, but the inventor is the same as other currently pending applications assigned to Burst), titled "Method for connection acceptance and rapid determination of optimal multi-media content delivery over network." It appears that the invention is an algorithm that dynamically maximizes the number of clients that a server can stream content to by analyzing the ideal data flow for the content, amount of bandwith available and the ability to send "burst transmissions." So the next question is whether such a method of data transmission is obvious to someone skilled at network design.

[melgross]

Originally Posted by backtomac

So MS payed 60 mil to settle. Why is Apple even fighting this in court? Pay 'em off and move on. You've got bigger fish to fry.

I agree with you. These patents seem to be tight. Apple should have settled before this decision. The further it goes, the more expensive it will get.

[digitalclips]

How big is Burst? Might this be a case where Apple might be better off buying this company?

[melgross]

Originally Posted by mark2005

The MS settlement may have had more to do with MS having been caught deleting emails rather than with the validity of the patent. During the period leading up to the MS trial, Apple staff were quoted as saying Burst's technology was nothing new.

Apple's staff would be expected to say this, wouldn't they?

By delimiting Bursts claims, it seems as though Apple knows they would be valid otherwise.

[quinney]

Originally Posted by digitalclips

How big is Burst? Might this be a case where Apple might be better off buying this company?

The market cap of BURST.COM is currently 82.7 million.
A buyout might be worth it, if the patent can get the
owner more money from more companies.

The stock is down .03 to 2.07 today, so this news is not
being interpreted as anything all that positive by
BRST investors.

[mfc2mfc2]

Originally Posted by digitalclips

How big is Burst? Might this be a case where Apple might be better off buying this company?

Burst is a very tiny company mostly owned by the board of directors. I don't think the board of directors would sell their company to Apple, unless the price was extremely high. Once they are done with Apple, there are hundreds of other companies left to collect royalties from. This patent is worth billions, so any buyout would have to be in the multiple billion range to convince the BOD to sell.

[backtomac]

Not every Apple website can get a Burst BOD to come and comment at their forum. This place is special. ^

[mfc2mfc2]

Originally Posted by quinney

The market cap of BURST.COM is currently 82.7 million.
A buyout might be worth it, if the patent can get the
owner more money from more companies.

The stock is down .03 to 2.07 today, so this news is not
being interpreted as anything all that positive by
BRST investors.

That is because the news broke yesterday. Yesterday Burst shares were up 35% on massive volume. The market cap of Burst was much smaller before yesterday.

[Nicnac]

Originally Posted by SpinDrift

Ah for pity's sake.. Not another one!

"Can'tInventAnythingButOwnsSomeObscurePatent Corp. announced they are suing Apple Inc. for their use of the letters "A," "P," "L," "E," "I," "N," and "C," in its corporate name. Today in Texas, the judge ruled that the case can proceed because Apple Inc. has shown reckless diesregard by using these letters in all mailings, print and web advertisments, and on all products. It is not clear whether the letter "P" constitutes a higher violation of patent abuse since it appears twice in the name of the company. No information has been made public as to the use of the period at the end of "inc."
Analysts are watching this case closely because it could affect the company's signature iPod line of products. If Apple loses this case, they will have to settle to continue using the letters or become "__________," makers of the "od" mp3 player.

[AISI]

Originally Posted by lssmit02

I think this is the patent (Burst.com is not listed as an assignee, but the inventor is the same as other currently pending applications assigned to Burst), titled "Method for connection acceptance and rapid determination of optimal multi-media content delivery over network."

Apple is allegedly infringing on four of Burst's U.S. patents. "Markman" Claim Construction Memorandum and Order Issued May 8th 2007:

Burst is the assignee of the four patents at issue in this lawsuit: U.S. Patent Nos. 4,963,995 (the “995 Patent”), 5,164,839 (the “839 Patent”), 5,057,932 (the “932 Patent”) and 5,995,705 (the “705 Patent”). Each of the four patents was developed by Richard Lang. The patents all relate to the sharing, editing and playing of audio and video information through computers, compression and high-speed transmission. Burst contends that its patents teach a fundamental innovation in compression and transmission of audio/video information by compressing audio/video information for transmitting in less than the time required to play the information. The four patents at issue in this lawsuit relate to various aspects of compression and transmission.

[AISI]

Originally Posted by DaveGee

Sorry to be a bit cold here but... As Ye Sow, So Shall Ye Reap! Apple has a propensity to use and abuse the US legal system as it's own private billy club to scare and shock people into submission then they shouldn't be afraid when said club finds its way straight up its ass...

Apple is patenting everything it can think of, but to my knowledge the company is not using its patents to make money. Burst.com may be defending its intellectual property… or trying to make a quick buck out of tech companies.

Apple enters legal battle with Burst.com:

Burst approached Apple in late 2004 regarding securing a license for the Burst technology. Burst's attorneys then informed Apple that Burst believed Apple was infringing on its patents, according to the complaint. […] If Burst succeeds in its patent lawsuit against Apple, it would mark its second major victory over a large tech company. Last March, Microsoft and Burst reached a $60 million settlement over allegations that the software giant had used, without permission, Burst's technology to speed delivery of video.

[nsm]

Originally Posted by Nicnac

"Can'tInventAnythingButOwnsSomeObscurePatent Corp. announced they are suing Apple Inc. for their use of the letters "A," "P," "L," "E," "I," "N," and "C," in its corporate name. Today in Texas, the judge ruled that the case can proceed because Apple Inc. has shown reckless diesregard by using these letters in all mailings, print and web advertisments, and on all products. It is not clear whether the letter "P" constitutes a higher violation of patent abuse since it appears twice in the name of the company. No information has been made public as to the use of the period at the end of "inc."
Analysts are watching this case closely because it could affect the company's signature iPod line of products. If Apple loses this case, they will have to settle to continue using the letters or become "__________," makers of the "od" mp3 player.

Burst was developing their highly advanced optimization algorithm for data flow, specifically packet sequencing and timing, long, long before it even occured to most than video streaming would even be possible. Were talking pre-world wide web. Sure, it seems today that this would be obvious because Microsoft Media player and Quicktime stole/copied the technology and gave it away to the masses for you and I to enjoy. But in 1990, networking speeds barely existed that would even support video streaming. These guys were a decade out in front and in technology as we all know, this is eons. Buffering, sure, this is obvious. But the algorithms on the server that determine the optimal packet sequencing distribution for a large number of concurrent connections...these are not. This is just part of what Apple has stolen.

Those of you fan-boys who think Apple is a cutesy company with with a do-no-evil attitude are dead wrong. They stole from "the little guy" and are making money off somebody else's hard work. 100 people lost their jobs at burst and owners, investors and management lost millions and millions of dollars. Its time for those people to be paid for their efforts.

Do whats right Steve...and that means no more back-dating options too. Its time to pay for what you have taken.

[backtomac]

Burst management sure is touchy over this thread, no? ^

[nsm]

Originally Posted by Nicnac

"Can'tInventAnythingButOwnsSomeObscurePatent Corp. announced they are suing Apple Inc. for their use of the letters "A," "P," "L," "E," "I," "N," and "C," in its corporate name. Today in Texas, the judge ruled that the case can proceed because Apple Inc. has shown reckless diesregard by using these letters in all mailings, print and web advertisments, and on all products. It is not clear whether the letter "P" constitutes a higher violation of patent abuse since it appears twice in the name of the company. No information has been made public as to the use of the period at the end of "inc."
Analysts are watching this case closely because it could affect the company's signature iPod line of products. If Apple loses this case, they will have to settle to continue using the letters or become "__________," makers of the "od" mp3 player.

Oh yeah, one other thing. It may be the case that Burst owns a patent they purchased, but if it were so damn obvious, why didn't Apple buy it first? The answer: because they didn't know it would be valuable yet.

Also, burst invented plenty of their patents, only a few were purchased (more than a decade ago).

[MacKeyser]

Quicktime streaming has been around for a REALLY long time. The QTSS has been around for 6 years, at least. If Apple is guilty of stealing, just like anyone or any company, they should have to take responsibility.

The issue I have are companies that wait until someone else uses a technology that happens to have been patented by someone else (and we all know how idiotic and lame the current patent process is), specifically NOT stolen, and then only after there has been massive market penetration do they attack with lawyers.

And in a global economy, how does that benefit American business? I'm no fan of the corporatocracy, but people gotta work somewhere and these patent parasites are only making a tough innovation environment worse.

I'd be MUCH more inclined to side with Burst or any of these companies if they filed for an injunction at the launch or during the public beta of a product, not 6-10 years later, after the products are ubiquitous.

Seriously, what is Burst doing with this tech? Dang, some days, I wish all the tech companies would literally say NO to all these patent crooks, roll back their products a decade and let all the patent thieves wipe their butts with their worthless, ill-conceived and wrongly awarded patents. And when the market decides that ain't what it wants, we might FINALLY get the patent reform we so desperately need.

[OoTLink]

Originally Posted by nsm

Burst was developing their highly advanced optimization algorithm for data flow, specifically packet sequencing and timing, long, long before it even occured to most than video streaming would even be possible. Were talking pre-world wide web. Sure, it seems today that this would be obvious because Microsoft Media player and Quicktime stole/copied the technology and gave it away to the masses for you and I to enjoy. But in 1990, networking speeds barely existed that would even support video streaming. These guys were a decade out in front and in technology as we all know, this is eons. Buffering, sure, this is obvious. But the algorithms on the server that determine the optimal packet sequencing distribution for a large number of concurrent connections...these are not. This is just part of what Apple has stolen.

Those of you fan-boys who think Apple is a cutesy company with with a do-no-evil attitude are dead wrong. They stole from "the little guy" and are making money off somebody else's hard work. 100 people lost their jobs at burst and owners, investors and management lost millions and millions of dollars. Its time for those people to be paid for their efforts.

Do whats right Steve...and that means no more back-dating options too. Its time to pay for what you have taken.

Isn't it true that if you get a patent to make something and never actually do it, for a very long time, and magically someone comes along and has the same idea, that your patent is as good as **** because you never exercised your patent?

IMHO Burst is full of **** for many reasons. Have you ever heard of Burst Streaming media? Nah.

And why are they waiting until now to bring this up?

[nsm]

Burst management sure is touchy over this thread, no?

I'm just a stock holder. Perhaps if you knew that stolen work directly lead to every employee losing their job, you might be a be more understanding.

Quicktime streaming has been around for a REALLY long time. The QTSS has been around for 6 years, at least.

Thats great. Burst has been doing it for nearly 20. I don't believe Apple was infringing upon Burst patents until iTunes.

IMHO Burst is full of **** for many reasons. Have you ever heard of Burst Streaming media? Nah.

And why are they waiting until now to bring this up?

The reason you haven't heard of them is because just recently the rest of the world has caught up to where burst was 15 years ago. There was little demand for their product back then and when the demand arrived, the technology was ripped off. I will give Apple innovation credit for arriving to this point ahead of nearly everybody. This shows their leading creativity we all love. Unfortunately, they weren't here first...and only first counts.

The only thing Apple did first......is sue. Big oops.

http://www.appleinsider.com/articles...nst_apple.html

http://www.webpronews.com/insiderrep...e-over-patents

[michaelb]

Originally Posted by MacKeyser

Quicktime streaming has been around for a REALLY long time. The QTSS has been around for 6 years, at least

Much longer. I remember attending a presentation on QuickTime Streaming Server in 1996, and it had been around for a while even back then.

These patent(s) simply sound like what Apple was calling "progressive downloading" from the beginning, and started appearing when QuickTime gained the ability to be embedded in a web page, circa QuickTime 2.5 / 3.0 in 1995 or so.

Surely Apple could fight this thing on prior art, if the patent was filed after that?

It's also a pretty obvious computer engineering solution: you buffer a stream then interpret the data you've collected so far. If you can buffer faster than you need for immediate use, then you cache the data, letting the network determine how fast you get it all. 1960s concepts applied to 1990s video.

[Lamont Cranston]

Am I missing something here?

I thought patents were for protecting the implementation of an idea, but not the idea itself. As a result, no one can patent the idea of video streaming, but any number of people can patent their unique solution for video streaming.

Therefore, if Apple has independently developed a solution that doesn't use Burst's code/algorithms, there's no case for them to answer (and vice versa).

[mfc2mfc2]

Originally Posted by MacKeyser

Quicktime streaming has been around for a REALLY long time. The QTSS has been around for 6 years, at least. If Apple is guilty of stealing, just like anyone or any company, they should have to take responsibility.

The issue I have are companies that wait until someone else uses a technology that happens to have been patented by someone else (and we all know how idiotic and lame the current patent process is), specifically NOT stolen, and then only after there has been massive market penetration do they attack with lawyers.

And in a global economy, how does that benefit American business? I'm no fan of the corporatocracy, but people gotta work somewhere and these patent parasites are only making a tough innovation environment worse.

I'd be MUCH more inclined to side with Burst or any of these companies if they filed for an injunction at the launch or during the public beta of a product, not 6-10 years later, after the products are ubiquitous.

Seriously, what is Burst doing with this tech? Dang, some days, I wish all the tech companies would literally say NO to all these patent crooks, roll back their products a decade and let all the patent thieves wipe their butts with their worthless, ill-conceived and wrongly awarded patents. And when the market decides that ain't what it wants, we might FINALLY get the patent reform we so desperately need.

The patent in question was granted in 1990, well before anyone else. The judge made it clear that there was no prior art in her Markman ruling. Apple tried to dismiss the case based on prior art, but that attempt failed.

This was not a case of Burst sitting around waiting to sue Apple. Burst demonstrated their new technology to Apple in January of 1991. Apple released their first version of QuickTime in December of 1991. The World Wide Web wasn't popularized until 1993, when the Mosaic browser was released. So this truly is the case of the inventor of the patent being a visionary. He saw the potential of delivering compressed audio/video over networks at a time when only a few academics had ever heard of the Internet.

Instead of paying for a license, Apple, Microsoft, and Real all decided to use the technology without paying for it, and release their competing products for free. Burst couldn't compete. A company with tremendous promise had to lay off most of its staff and essentially close up shop. Large companies steal from smaller companies all the time, since very few small companies can afford the legal expense of fighting a titan.

Burst sued Microsoft first. That took a long time, but they won. They next attempted to reach a settlement with Apple. Burst is the defendant in this case. Apple sued Burst in an attempt to invalidate the patents. This aggressiveness of Apple backfired. The judge used the phrase "nonsensical" when describing Apple's argument in her Markman ruling. Markman rulings cannot be appealed.

[nsm]

it isn't just about data distribution of video streaming...its about how to optimize it etc... and its not about variable bit rate either.

Heres a good overview from 30000 feet:
http://www.businessweek.com/@@a3l1kI...7/b3981070.htm

[mfc2mfc2]

Originally Posted by Lamont Cranston

I thought patents were for protecting the implementation of an idea, but not the idea itself. As a result, no one can patent the idea of video streaming, but any number of people can patent their unique solution for video streaming.

I am not sure the exact answer to your question, but Apple did copy both the idea and the implementation. The primary focus of the Markman ruling was an argument over the implementation. It is the first point of contention addressed in the court document. The judge sided with Burst, which is bad for Apple since the implementation described by Burst is exactly the same as Apple's implementation.

[melgross]

Originally Posted by OoTLink

Isn't it true that if you get a patent to make something and never actually do it, for a very long time, and magically someone comes along and has the same idea, that your patent is as good as **** because you never exercised your patent?

IMHO Burst is full of **** for many reasons. Have you ever heard of Burst Streaming media? Nah.

And why are they waiting until now to bring this up?

Wrong on all counts.

[melgross]

Originally Posted by Lamont Cranston

Am I missing something here?

I thought patents were for protecting the implementation of an idea, but not the idea itself. As a result, no one can patent the idea of video streaming, but any number of people can patent their unique solution for video streaming.

Therefore, if Apple has independently developed a solution that doesn't use Burst's code/algorithms, there's no case for them to answer (and vice versa).

Patents don't protect ideas. They protect inventions and processes. Sometimes, they also protect discoveries as in the biomedical field, but that is controversial.

[wilco]

Originally Posted by Nicnac

"Can'tInventAnythingButOwnsSomeObscurePatent Corp. announced they are suing Apple Inc. for their use of the letters "A," "P," "L," "E," "I," "N," and "C," in its corporate name. Today in Texas, the judge ruled that the case can proceed because Apple Inc. has shown reckless diesregard by using these letters in all mailings, print and web advertisments, and on all products. It is not clear whether the letter "P" constitutes a higher violation of patent abuse since it appears twice in the name of the company. No information has been made public as to the use of the period at the end of "inc."
Analysts are watching this case closely because it could affect the company's signature iPod line of products. If Apple loses this case, they will have to settle to continue using the letters or become "__________," makers of the "od" mp3 player.

zzzzzzzzzzzz

Another of AI's great legal minds adds his 2 cents, and bores everyone with an attempt to be clever.

[Nicnac]

I agree. Your response is boring and hardly clever. Now that Apple is on top, they are being sued every few weeks for this and that obscure technology. Let's see how many lawsuits it will take before you make a comment on the subject, clever or not.

[yianni]

Apple is the plaintiff in this action.

[meh 2]

Originally Posted by yianni

Apple is the plaintiff in this action.

It is also not impossible that Apple purposely made a motion for a pre-trial ruling to get a glimmer from Burst as an aged topic litigant on some piece of the puzzle they feel they need.

Pre-trial motions are often launched with little expectation for being fully granted.

[petermac]

If a patent was granted in 1990, when would it expire and move into the public domain.

[melgross]

Originally Posted by petermac

If a patent was granted in 1990, when would it expire and move into the public domain.

Sometime in 2010.

[reinharden]

Originally Posted by melgross

Sometime in 2010.

It depends.

For patents filed after June 7, 1995, expiration is 20 years from the filing date. For patents filed before June 7, 1995 and issued by June 7, 1978, expiration is the later of 20 years from filing or 17 years from issuance.

So, for patent 4,963,995, expiration is December 27, 1988 + 20 years or October 16, 1990 + 17 years.

Pretty inane patent if you ask me since all it does is digitize video into memory and write it out later. That was pretty obvious even in 1988. FWIW, my Mac did essentially that in 1984 when copying floppies (albeit without digitizing video)... Of course, it's a joke to pretend that many computers had enough RAM to make this feasible for video back then. But the approach was obvious.

Determining the dates for patents 5995705, 5057932, and 5164839 is left as an exercise for the reader. ;-)

If you're bored, you can even find where they reference Steve Jobs in the patent. ;-)


Of course, I'm not a lawyer and I don't play one on TV. Hopefully the people who slurped up BRST shares at $0.03 and $0.04 back in 2002 got out last week at $2.30 (after getting a $0.90 dividend in 2005). Can't complain too much about getting 100x your investment in 5 years.

I always kind of figured that MSFT paid BRST $60M so that BRST would have enough money to harass AAPL...seeing as how Quicktime had worked better than MSFT's offering, it was cheaper to fund AAPL's "enemies" than keep fighting them head-to-head.

reinharden

[melgross]

Originally Posted by reinharden

It depends.

For patents filed after June 7, 1995, expiration is 20 years from the filing date. For patents filed before June 7, 1995 and issued by June 7, 1978, expiration is the later of 20 years from filing or 17 years from issuance.

So, for patent 4,963,995, expiration is December 27, 1988 + 20 years or October 16, 1990 + 17 years.

Pretty inane patent if you ask me since all it does is digitize video into memory and write it out later. That was pretty obvious even in 1988. FWIW, my Mac did essentially that in 1984 when copying floppies (albeit without digitizing video)... Of course, it's a joke to pretend that many computers had enough RAM to make this feasible for video back then. But the approach was obvious.

Determining the dates for patents 5995705, 5057932, and 5164839 is left as an exercise for the reader. ;-)

If you're bored, you can even find where they reference Steve Jobs in the patent. ;-)


Of course, I'm not a lawyer and I don't play one on TV. Hopefully the people who slurped up BRST shares at $0.03 and $0.04 back in 2002 got out last week at $2.30 (after getting a $0.90 dividend in 2005). Can't complain too much about getting 100x your investment in 5 years.

I always kind of figured that MSFT paid BRST $60M so that BRST would have enough money to harass AAPL...seeing as how Quicktime had worked better than MSFT's offering, it was cheaper to fund AAPL's "enemies" than keep fighting them head-to-head.

reinharden

As a practical matter, it almost always works out to 20 years.

As we are moving the patent system to more closely resemble the one in Europe, 20 years will become the only number.

It's not the idea of doing what BURST does, or Apple does that matters, but HOW it is done. It isn't so simple.

Apple paid Creative off. It's thought that one reason was so that they would hassle MS, as I believe they are now doing.