Texas-based Vertical Computer Systems Inc. accused Microsoft of violating Vertical’s patent on so-called SiteFlash technology that the company said was copied by Microsoft in .NET. The companies settled with terms as yet unannounced, but Vertical definitely won since Microsoft is buying a license to the patent in question. It’s nice for Vertical that Microsoft settled, but sharp legal minds (far sharper than mine) were surprised. Microsoft isn’t in the habit of settling these suits early if at all and the U.S. Supreme Court’ KSR decision from April, 2007 has shifted the advantage in such lawsuits to companies with large patent portfolios (that would be Microsoft) and away from their smaller adversaries (that would be Vertical). The importance of this decision (and its dire effect on small inventors) has gone right over the heads of most people, but it is rapidly changing the way IP is handled in the tech world.

So if Microsoft normally doesn’t settle suits like this early and the legal terrain has actually improved for Microsoft since the suit was originally filed, what the heck are they doing settling the suit and presumably paying millions that could probably have been avoided? (…)

I think Microsoft settled quickly and quietly with Vertical to avoid going to court because a trial might have exposed Redmond to far more risk than one might expect from a little patent infringement suit. That’s because of something that happened in an earlier case I covered extensively several years ago – Burst v. Microsoft.

For those who don’t remember or never knew the sad story of Burst v. Microsoft, it was a complicated suit involving not just patent infringement but also anti-trust, restraint of trade, and breach of contract. The smoking gun in the Burst case was that Burst lawyers caught during discovery a pattern of apparent destruction of e-mail evidence on the part of Microsoft. Microsoft claimed it was “too hard” to search for the lost e-mails (Burst had copies from its side so many of the messages were known to have existed) but Judge Frederick Motz finally ordered Microsoft to do whatever it took to dig up the tapes and find the e-mails. Fortunately for Redmond, the case settled (for $60 million) before Microsoft actually had to produce anything.

Months after the Microsoft/Burst settlement I received e-mail from a former Microsoft contractor:

Now that Burst v. MS has moved out of the courts, I thought that I might add a little to what you know about this case. Back about two years ago when the judge told MS to cough up the rest of the emails that was supposed to have floated around between MS execs that discussed the Burst relationship, the team that I was on (Corporate tape backups) was asked to gather all together all of the tapes that were used during that time. Even though there was a corporate policy in place that any *.pst was to be excluded from backup capture, the effort failed. Not only did the Backup Exec software fail to filter out those pst files, but some of the involved blue badges (Microsoft employees) intentionally disguised their mail files so that they would not be recognized and included in the nightly backups. This last effort was even prohibited by policy from the VP level. As I was the one tasked to gather the tapes together from Arcus/Iron Mountain, I know exactly how many tapes were recalled for the involved servers. They filled several 240 tape trunks and were stored in the Building 11 tape vault.

Several months after all of the tapes were gathered, MS legal started asking for restores of any pst files captured, the tapes ‘mysteriously’ went missing. Now because our team was a managed service vendor, we were held directly accountable and responsible for the loss. I can think of a lot of reasons that the tapes were removed by someone blue. It is also possible that someone on our team performing a standard purge of old media mistakenly pulled them and sent them to the shredder and even though the tapes were stored in a special section specifically marked “Do Not Touch” taped across them I find it highly unlikely.

In case you aren’t familiar with this case let me put this guy’s statement in some context. Microsoft was saying in court that it couldn’t find the tapes and that it would take millions of man-hours to search for them when in fact the several trunks full of tapes were apparently easily gathered and already stored in the Building 11 tape vault.

At the time Microsoft lawyers were claiming the tapes would be impossible to find, THEY HAD ALREADY BEEN FOUND.

It would be interesting to know if Microsoft’s lawyers were aware of this. They should have been, but this may have been one of those instances when it was to their advantage NOT to know.

And then THE TAPES DISAPPEARED. Funny we never heard about that, either.

To my knowledge, Microsoft never presented this “the dog ate our tapes” story, most likely because they may not have wanted to acknowledge that there even WERE such tapes. The fact that there were tapes and then there weren’t probably SHOULD have been mentioned, since I’m guessing not doing so violated a court order. Certainly it should probably have at least been mentioned in the discovery materials given to Burst.

Why, if the tapes were found, did they sit for months in a special tape vault in Building 11 rather than be examined for the missing messages? And then there is the big question about what happened to the messages at all — messages that were in a locked vault and labeled “Do not touch” — how did they get thrown away and by whom?

The former Microsoft contract employee who contacted me on this issue did not do so anonymously, by the way. I know his name and how to reach him. We have talked on the phone more than once. He did not hesitate to name names:

“…Calvin Keaton, the blue badge who managed the team, made the appropriate loud noises about the loss to HP services, although I never saw any public disclosure about it…. Just glad I never had to depose for the issue. Can’t imagine that it would have done my career any good.”

So the outside vendor was Hewlett-Packard, one of Microsoft’s hardware OEMs, which is to say Microsoft’s bitch.

The tape disappearance was blamed on HP, which reportedly accepted the blame, and the employees directly involved kept expecting there to be repercussions, especially legal ones. They expected to be deposed by Burst lawyers. But it never happened.

This was, for Microsoft, a perfect ending. The damning tapes were lost in a way that could be blamed on a contractor — a contractor over which Microsoft had great power — power greater than just a services contract. The contractor “accepted” responsibility though there was no real evidence they had done anything wrong. It could just as easily have been a Microsoft employee who destroyed the tapes. It is possible that Microsoft never revealed to the court either that the tapes had been found or that they had later gone missing. This admission would have had to have taken place at the spoliation hearing that was scheduled for the week Microsoft instead settled with Burst for $60 million.

I contacted both Burst and Burst’s lawyers last year and they could not recall any aspect of this incident having been revealed to them by Microsoft or by the court. It was news to them. But of course by that time the case had been long settled.

Microsoft’s legal behavior in this is consistent — consistently bad — and the only intersting aspect of that part is that it is logical to assume Redmond would have paid ANYTHING to avoid that spoliation hearing and its need to either come clean about evidence destruction or to commit perjury by not coming clean. $60 million was nothing to Microsoft. Burst could probably have got a lot more money had they known what was actually going on. (…)

But since the Burst settlement there have been at least a couple more Microsoft lawsuits that may also have been affected by the lost evidence in Burst v. Microsoft. The people of Iowa cited it, I’m told, in their anti-trust case against Microsoft that settled pre-trial last year. It may have been known, too, to Vertical in this most recent case. Any claimed pattern of deception on Microsoft’s part would be dragged-up in similar cases.

If these claims are true, what Microsoft allegedly allowed to happen and then did not disclose (along with the suspicious timing of all of it) was illegal in a stop-the-presses, all-capital-letters way. You just don’t do that to Federal judges. So Microsoft is paying and paying and paying again not just for intellectual property licenses in these subsequent cases, but also for this earlier information to be kept out of court. And for lawyers who understand such issues, it strengthens their hand substantially.

{ Robert X. Cringely | Continue reading }

{ Translator II: Grower is a small ‘rover’ vehicle which navigates around the periphery of a room. It hugs the room’s walls and responds to the carbon dioxide levels in the air by actually drawing varying heights of ‘grass’ on the walls in green ink. The Grower robot senses the carbon dioxide (CO2) level in the air via a small digital CO2 sensor. | RAAF, Grower, 2004-6 }

On a July day in Chicago, Google employees swarmed a conference room at the advertising agency Leo Burnett, carrying in couches and beanbag chairs to create a lounge. They gave away candy and showed off Google’s advertising technology. Throughout the day, they emphasized a single message: Google is a friend to ad agencies.

No, really.

Advertisers are grappling with the idea of Google, which spent many of its early years avoiding — and infuriating — advertising agencies, now shifting to embrace them.

During the last year, Google has built a 40-person group that is charged with courting agencies, trying to persuade them that their clients should buy ads on Google sites and use the search engine’s tools. The Google team — like any ad team — is visiting agencies to show off the company’s products, like video ads on YouTube and display ads from DoubleClick. Its representatives are even making regular visits to ad agencies, soliciting suggestions and fielding questions. (…)

Peter S. Fader, a professor of marketing at the Wharton School at the University of Pennsylvania, sees the Google approach as part of a master plan to get its corporate hooks into more of the agencies’ business.

“If Google were to just set up a shingle and say ‘Google ad agency,’ the traditional agencies will find a way to keep them out of clients’ offices,” Professor Fader said. Instead, he said, “they’re almost like a virus, going to work their way into specific agencies and replace the DNA of those agencies with a more analytic orientation while trying to maintain some of the client relationships.” (…)

When Google visits agencies, it typically brings in a gelato cart or a coffee bar. It has even built a replica of Google’s office kitchens. It offers free food and prizes of iPod Touches.

{ NY Times | Continue reading }

eBay.de | SCREEN USED Freddy Krueger Glove Nightmare Elm Street 5

The glove is built by Ryan Effner whome built all the gloves for Elm Street 5 and come from his personal collection. Sadly when Ryan died his family had to sell some of his personal collection of his work to raise funds. This is how this glove become obtained.

The Glove still has the “red” theatre blood stains on the leather tips just as did most of the gloves for the film. Also all soldering on this glove was done to precision no loose blades are present.

Another noticable appearence is the shape of the blades. Ryan cut and ground all his own blades on the part 5 gloves with a particular shape.

This glove is a left handed “mirror” steel bladed closeup stunt glove.

The glove by inspection looks to be built by the same templates as the hero unlike many other stunts. The blades on stunt glove are usually plastic but these are steel due to the glove was used in a closeup stunt where the stuntman needed to use his right hand as stated on the certificate.

This glove is number 1 of 2 metal bladed stunts, i have never seen or heard anything of number 2 so this is a real rarity.

The glove is in immaculate condition, signed by Ryan Effner inside the glove and dated 1989. Also at the bottom of the glove it is marked LEFT.


With this glove you get the certificate, a letter from Ryan Effners mother and a Ryan Effner leaflet. Also i am giving away a free Robert Englund signed index card with freddy character he drew.

PAYMENTS MUST BE RECIEVED WITHIN 3 DAYS OF AUCTION END

There is a fairly popular commercial website I heard about this week that has a novel way of making sure its ad revenue numbers are met. This site has its own ad sales team selling display space bringing in tens of millions of dollars per year in revenue. It is a good site and grandly profitable, but if for some reason revenue dips below target a little code kicks in and starts refreshing particular pages every 90 seconds, generating each time a new “hit” on that page’s banner. The refreshes are tied directly to revenue and nothing else and it seems to me that what’s happening is, well, theft.

Here’s how these bozos can get away with a stunt like this. First, advertisers often don’t really want to know the success of their ad campaigns to a fine level of granularity. They’d rather keep the ad game a sort of dark art because, frankly, they pretty much don’t know what the heck they are doing anyway and ad buying is done by the lowest-level agency employees when it properly should be done by the highest. So if something is wrong they’d really rather not know about it, thanks. The second reason why this kind of stunt goes unpunished is because it doesn’t happen all the time. The site generally provides good content and good service and they only kick in this little script when absolutely needed. So if a lot of people seem to be clicking on ads but few are actually buying, well it comes back to that black art, doesn’t it? And finally, the Internet isn’t as sophisticated an ad space yet as are magazines, for example, where the Audit Bureau of Circulations does a pretty good job of keeping track of how many people actually read ads. The Internet, though some would claim otherwise, doesn’t really have a comparable operation to the ABC, but it probably should.

This is not the first time I have heard of a scam like this, but it is the first time I’ve heard it applied to a big and respected operation. There are lessons to be learned here by publishers, advertisers, and readers alike.

{ Robert X. Cringely | Continue reading }

#4 please cut out the DRM crap, and price your products reasonably.

#6 Stop creating new features and make your software fast, stable and straightforward.

#17 Why does Photoshop cost as much as a pre-owned small car? Drop the price please!!

{ Dear Adobe, Top 50 | Continue reading | Photoshop Evolution }

This is a little bit genius. One of the new features of FriendFeed (a Twitter-like thingie) is “fake following”. That means you can friend someone but you don’t see their updates. That way, it appears that you’re paying attention to them when you’re really not. Just like everyone does all the time in real life to maintain their sanity. Rex calls it “most important feature in the history of social networks” and I’m inclined to agree.

{ Kottke.org | Continue reading }

I bought a stereo. Wow! Two speakers!

So I’m listening to this thing. And then I heard the quad system with the four speakers, and I said, “This is it, this is great.”

So I got rid of the stereo and got the quad, and this was the sound I was looking for.

But I listened to it a couple of days and said, “Hey, this sounds like shit.”

So I went out and I got the duodecaphonic with the 12 speakers, and this was more to my liking… for a while.

But the ear gets sophisticated pretty fast and I got rid of that and got the milliphonic with the thousand speakers. And I’m listening to it and I said, Hey, this sounds like shit too. The other one was shit one, this is shit two.

So finally I got the googlephonic, the highest number of speakers before infinity. Sounds like shit.

So I said, “Hey, maybe it’s the needle.”

So I had the old typical diamond needle, and I searched around, finally got the moonrock needle. Cost me 3 million bucks for that. So now I have a googlephonic stereo with a moonrock needle.

It’s okay for a car stereo. I wouldn’t want it in my house.

{ Steve Martin, 1979 }

photo { Richard Prince, Untitled (Party), 1993 }

Rapid advances in neuroscience could have a dramatic impact on national security and the way in which future wars are fought, US intelligence officials have been told.

In a report commissioned by the Defense Intelligence Agency, leading scientists were asked to examine how a greater understanding of the brain over the next 20 years is likely to drive the development of new medicines and technologies.

They found several areas in which progress could have a profound impact, including behaviour-altering drugs, scanners that can interpret a person’s state of mind and devices capable of boosting senses such as hearing and vision.

On the battlefield, bullets may be replaced with “pharmacological land mines” that release drugs to incapacitate soldiers on contact, while scanners and other electronic devices could be developed to identify suspects from their brain activity and even disrupt their ability to tell lies when questioned, the report says.

“The concept of torture could also be altered by products in this market. It is possible that some day there could be a technique developed to extract information from a prisoner that does not have any lasting side effects,” the report states.

The report highlights one electronic technique, called transcranial direct current stimulation, which involves using electrical pulses to interfere with the firing of neurons in the brain and has been shown to delay a person’s ability to tell a lie.

{ The Guardian | Continue reading }

Capturing solar energy from pavements has been perfected for years now.

Researchers at the Worcester Polytechnic Institute unveiled the findings of a research project on the concept of using the heat absorbed by pavements. Rajib Mallick, associate professor of civil and environmental engineering, who was the team leader will hail the achievement as “revolutionary”.

By using the heat from asphalt, the researchers have developed a solar collector that could turn roads and parking lots into invisible and cheap sources of electricity and hot water.


The research team will prove that asphalt has a lot of advantages as a solar collector. It is known that the blacktop stays hot and could continue to generate energy after the sun goes down, unlike traditional solar-electric cells. In addition, there is already a massive acreage of installed roads and parking lots that could be retrofitted for energy generation, so there will be no need to find additional land for solar farms.

{ EcoWordly | Continue reading }

chart { Good magazine | enlarge }

One of the most watched projects during the run-up to the 2008 Beijing Olympics, along with the construction of the Bird’s Nest Stadium and the glowing Aquatics Cube, was the Chinese government’s efforts to cut emissions by 60 percent in the city. It has been a colossal undertaking in an area where air-pollution is five times higher than World Health Organization safety standards and smog can get so dense that it sometimes occludes the sun. The effort has involved ordering half of the city’s cars off the roads and temporarily moving or closing dozens of steel mills, foundries, and factories across the capital.

But such a dramatic decrease in pollution could provide more than just healthier conditions for competing athletes. It may also afford scientists a rare opportunity to see how climate change responds to such a massive adjustment in emissions.

A team led by Veerabhadran Ramanathan, a climate and atmospheric scientist at the University of California, San Diego, will spend the next six weeks flying autonomous unmanned aerial vehicles (AUAVs) downwind of Beijing to measure emissions reductions. “By cutting down on the pollution over Beijing during the Olympics, the Chinese have created a huge natural laboratory for understanding how pollution impacts climate,” Ramanathan says.

{ Technology Review | Continue reading }

Last week, it was reported that during the opening ceremonies of the Beijing games, broadcasters used footage of fireworks that was not only pre-recorded but also digitally animated.

The sequence lasts about 30 seconds. An aerial shot sweeps over Beijing as twenty-nine bursts of fireworks explode in the clear night. (…)

The L.A. Times wrote that Crystal Stone, an animation company, “spent nearly a year crafting the clip. To make it as visually seamless as possible, Crystal Stone consulted with the weather bureau to re-create Beijing haze at night, and the shot included a slight shaking to simulate shooting from a helicopter.” (…)

For the Chinese, the fireworks sequence was important. It would not only demonstrate their pyromania, but also to showcase the air quality in Beijing. But because of the digital image, we’ll never know what the sky looked like that night.

{ Columbia Journalism Review | Continue reading }

For a moment in the late 1990s, it looked as though mobile phones might make us free. You could work in the park, be available when you wanted to be, choose who you answered to. You could be anywhere while you did anything. (…)

Ten years later, there are 3.3 billion active mobile phones, meaning that half the planet has one; 85 per cent of the million new subscriptions taken up each day come from the developing world. (…) The trouble is that the phone companies and interested others do know exactly where you are, at any given second, so long as you have your handbag with you and your phone switched on: even the most basic technology, phone mast triangulation, locates you to within a couple of hundred metres; newer phones, with GPS built in, will tell any system that asks whether you’re in the kitchen or the loo.

You might assume that this information is either of interest to no one or, at the very least, protected by privacy laws and accessible only by the agencies that hunt suicide bombers and paedophiles. But you’d be wrong. Anyone can, for instance, sign up – at £29.99 a year – to mapAmobile.com (‘you’ll always know where your loved ones are’), which allows you to follow the movements of your ‘family and friends’ on a computer screen. The safeguard, from your friend’s point of view, is that he has to consent to being tracked, a process which involves his replying to a text message alerting him to the request; this shouldn’t be much of a hindrance to you as would-be stalker if he happens to leave his phone lying around. That this sort of enterprising solution is possible is the result of the major networks – in the UK, Vodafone, Orange, O2 and T-Mobile – having decided, in around 2002, to sell their location data to any company willing to pay for it.

Such services are obscure, and barely legal, but it’s about to be brought home to the majority of mobile users that what they’re up to isn’t private information. Owners of the latest version of Apple’s iPhone – avidly queued for at stores around the world last month – can now download an application that displays a friend’s location as a bright green dot on a map. (…) If all this sounds like unnecessary gimmickry, and you’re perfectly happy with your phone the way it is, or would be if only you knew how to make it ring like a phone rather than a wheezing horse or a three-dimensional aural representation of the rings of Saturn, then you’re out of luck: the information your phone provides is out there anyway. It doesn’t belong to you, and anyone with the required resources can do with it what they will.

{ London Review of Books | Continue reading }

related { The best of the current iPhone app offerings }