Sendo announces legal action against Orange over SPV

[Guest Big Ron - No Longer a Mem]

One, back in November/December 2002, Orange were claiming to have "jointly developed the SPV with Microsoft" (Which I privately doubted, but that's what they claimed!) Two, Microsoft (for example) write and package their software in the USA... but that doesn't stop them suing for copyright infringement in South America (under somewhat dubious circumstances - the standard outcome is an out of court settlement, where the accused agrees that henceforth they'll stop using any software NOT made by Micro$oft, to the detriment of Novell, Symantec etc.) If Sendo own a UK patent on a circuit, then anyone selling a piece of equipment in the UK that incorporates that circuit (without paying royalties) is guilty of a crime. That's what patents are FOR. Are you suggesting that - for example - if I download the US version of Windows XP from a website in Chicago USA, to my computer in the UK, that I'm "not breaking any UK laws" because the crime took place in the USA? If so, I think Micro$oft would disagree with you.

Orange made specific claims to "complicity" with MicroSoft in the design of the SPV. As I've said, I have doubts - MS's reference design leaves minimal scope for other-than-cosmetic alterations - but THEY claim to have jointly developed. Raises an interesting question - we know that a containerload of SPV's were stolen around launch time. If those were then shipped (say) to Paris and sold through a specific chain of retailers... wouldn't it be eminently reasonable for Orange to complain to the French police that these phones were "stolen property"? And wouldn't it be eminently UNreasonable for the Gendarmerie to reply "Well, they weren't stolen HERE mate!"

[Guest SirGaz]

I'm no leagl eagle, but I thought that country patents were just that, for infringement within the country where the patent was taken out. You have to apply for a world wide patent to cover all countries. As for Microsoft, they have offices in most countries and I'm sure would have applied for patents and copyrights in all countries (they can't be that stupid surely). Correct me if I'm wrong.

[Guest Rob.P]

...Are you suggesting that - for example...

No I'm not suggesting anything I just wanted clarification as I don't understand the legal system as well as others do.

Thanks for the clarification :lol:

[Guest midnight]

errr, for a start big ron, i was quoting something from the register, i wasnt saying it myself, also, heres another quote.....

The agreements gave Microsoft access to Sendo's confidential technical and marketing information in exchange for a US$12 million investment and promises that Sendo's Z100 Smartphone, originally set for release in August 2001, would be a priority for Microsoft.

now, if the patent was only issued september 2001, then surely the patent is null and void if microsoft had access to their technology before this date? you have to be very carefull with patents not to mention it to anyone beforehand, and have a lot of trust has to be involved, obviously microsoft arent very trustworthy, but everyone knows that anyway, business is business afterall, and microsoft wouldnt be the power they are today without cutting a few throats (pardon the pun).

also, arent sendo making a mistake sueing orange? i mean, sendo are making smartphones for nokia, which i presume nokia plans to sell, whats the betting orange now wont sell those particular handsets?

[Guest Big Ron - No Longer a Mem]

"I'm no leagl eagle, but I thought that country patents were just that, for infringement within the country where the patent was taken out. You have to apply for a world wide patent to cover all countries. As for Microsoft, they have offices in most countries and I'm sure would have applied for patents and copyrights in all countries (they can't be that stupid surely). Correct me if I'm wrong."

Trouble is, patent law varies widely. When Sam Colt developed a particular type of revolving pistol, his FIRST patent was taken out in London - and only the second one in the USA. Same gun, therefore same patent would seem logical. But when was law ever logical? Under UK patent law, you need to prove a far better claim, and the scope of the patent is far narrower than in the USA. So, in the UK Colt got a patent SPECIFICALLY on an open framed, single-action revolver. In the USA he got a blanket patent on revolvers generally. (The UK patent office would have pointed out that revolvers had been around for quite a while, and that his claim to have invented the concept was therefore "patently" absurd! Puckle's revolving cannon - which fired roundshot for Christian targets, and square bullets for Moslims (don't ask!) had been available to view in the Tower of London for over a century. So... the Adams company were free to sell a double-action, closed-frame revolver in the UK, which proved considerably more popular than the Colt. In the USA, a Colt employee named Rollin-White came up with the idea of drilling the cylinder all the way through - and patented the idea. he offered to sell the patent to Colt, who (shortsightedly) turned it down. So... he sold the idea to Horace Smith and Daniel B Wesson - which gave THEM a ten year monopoly on manufacturing breach-loading revolvers. Smith and Wesson had likewise bought another patent for a clever lever-action rifle called the "volcanic". Designed around a truly bad cartridge, they never got it to work properly... and they sold the rights to a speculative shirt manufacturer, who employed an engineer called Henry to try and fix the design problem. Henry changed the ammunition, and went back to his boss with a working rifle - his boss was Mr. Winchester. In the UK, also patents need to be renewed - AFAIK, in the USA they don't. There's a certain amount of rancour over this, as failure to get the "repeat fee" to the UK office in time lost an American designer the patent for box magazines on rifles.

(Guess what my other hobby is!)

[Guest mattat]

I'm not entirely sure it will be an open and shut case. Firstly Sendo must prove that Orange have in fact used the patented circuit board in the design. Unless it is exactly the same then there is considerable room for controversy on that point, also another major line of defence for Orange will be a counter claim that the patent is invalid for lack of novelty, so that if before they filed the patent application there was anyone anywhere in the world who was "free in law and in equity to use" the design. then the patent will fail - despite it being approved by the PO(UK). This happens a lot and can occur from the slightest mistake by the patentee - for example in a case that involved the ballpoint bit of biros, the fact that one early prototype had been given by someone in the company to a friend as a gift (even though they never had any commercial intention with it) was enough.

I'd expect Orange to fight hammer and tongs to defend this, and if Sendo are in as much financial trouble as most people think that they are, they are unlikely to be able to take a long drawn out period of litigation.

[Guest midnight]

unless of course nokia fund it :lol:

i'm sure nokia would love to see sales of all smartphones to cease, and with sendo and nokia now working together on nokias new range of cellphones (which they better be carefull not to use any of microsofts patents hehe), then this could indeed be a possibility (although possibly unlikely)

[Guest Big Ron - No Longer a Mem]

Can I run through what I THINK has been the history of the project thus far? If I've made any serious blunders in my understanding, then maybe someone with more speicialist information can correct me.

First off, Microsoft decided they wanted "in" to the mobile phone market - but nobody was interested in playing ball with them and developing a "Windows" phone. The difference between Symbian and Windows is "the nature of ownership" - join Symbian, and you're joining a club in which your opinions are listened to. Join Windows, and Microsoft calls the shots and has its own agenda. Technical issues aside, Microsoft's track record leaves a bad taste; one can understand anyone's reluctance to form an alliance. So, Microsoft changed tack. If they couldn't get established phone makers to play with them, then they'd form their own gang - they'd produce a "reference design" that worked with their software, and offer a "turn yourself into a phone manufacturer" kit which they could sell to OEM companies. People with no previous interest in mobiles could buy the kit, make a few (largely cosmetic) changes, design their own case, and get into the phone business. If you'd previously built PDA's (like HTC, who make Ipaqs for Compaq) then getting into the phone making business would be like falling off a log. But there were STILL no takers - the missing ingredient was "telcos". So, you make this marvelous phone - best thing since chocolate biscuits. It's fantastic, it's cheap, it runs Windows. If no telco adopts it as part of their range... you're f*cked. The idea is to SELL the things, not just MAKE them, and that's an area that's already stitched up. You need an "in".

Sendo provided what Microsoft needed above all - telco contacts. They ALSO noticed serious design problems with the "reference design" - the blueprint for the phone. So, they fixed the problem. They ALSO introduced Microsoft to telcos - mainly Orange. And THIS is the bit that all the litgation is about. Sendo claim that Microsoft set up a deal with Orange to sell the phone, and took the AMENDED reference design - the new "fixed" one - off to HTC and got them to build it. Sendo claims that they then deliberately tried to push Sendo into bankruptcy - the terms of their joint venture having specified that if Sendo went bust, Microsoft would own everything. Sendo's allegation is that Microsoft NEVER intended to go through with the joint deal - the aim was ALWAYS to rip off Sendo for their contacts, and then dump them (and THAT is why the odd "if Sendo goes bankrupt..." clause was in the contract.)

The problem seems to be that Sendo dis NOT go bust, and that they made some major changes to the prototype Microsoft had been hawking around unsuccessfully for years, and that what HTC put into production was the MODIFIED version, incorporating the Sendo modifications. They point out that if Sendo HAD gone bust, this wouldn't have mattered - but ask HOW Microsoft could possibly have known that Sendo was GOING to go broke so far ahead of time, unless things were PLANNED that way? It's a little redolent of "spending the money your aunt left you in her will six months before she told the doctor she wasn't feeling well."

As I understand it, the "reference design" is heavily tied to the software - Microsoft flatly refuse to modify the software (or allow third parties to do so) so that the scope of hardware design changes from the reference is minimal - I read somewhere that even "moving the buttons around" isn't easy. If that's true (and I'm wide open to correction) Microsoft carry the can for "spending Aunt Maud's legacy before she was dead. " But Orange are in the interesting position of having "cashed the cheques". When started working for Orange the SPV was just pre-launch, and Orange was stirring the troops with (generally vague) information about the new phone. One of the first claims they made in their internal "flash" presentation was to have "developed the phone jointly with Microsoft". Knowing what I now know, that strikes me as even more unlikely than it did back then - but it's an interesting claim. My understanding is that >99% of the development was Microsoft and Sendo. That's WHY HTC was able to get off the starting blocks so quickly - they started out with what was effectively "a production-ready, finished design."

So... what's it all come down to in the end? Well, if most of the above is accurate, it's down to Sendo and the courts. Worst case scenario for SPV owners is that you've got a real collector's item - the last (and first!) of the Smartphones. Microsoft are back where they started, hawking around a two years old reference design and trying to find takers. But before they can start "re-hawking" it, they need to go back to the "PRE Sendo point" (the point BEFORE Sendo fixed the flawed design) and they need to fix it all over again - WITHOUT using Sendo's methods. Only THIS time, it's going to be harder. The reference design will be several years old, and OEM manufacturers (and Telcos) are going to be harder to get interested. Microsoft's already seedy reputation will have got their before the sales pitch. The reply is likely to be "Hell it took you HOW MANY years to get to the point where you sold a derisory number of phones LAST time, with that SPV thinggy? And it turned into a sh*tstorm for everyone involved. And you want US to get involved in your SECOND attempt?"

I think the phrase is "don't call us.... we'll call you."

Does anyone else remember seeing that pre-release "flash" promo on Scholar? Bristol accompanied it with a "quiz", with small prizes for the teams that got the most questions correct. I recall being amused at the time - "The SPV plays MP3, WMV, and WMA files." Sure it does. Problem was, hardly anyone in Bristol has a clue what a "WMV file" IS.

[Guest awarner [MVP]]

Good point, one thing though where do the new Smartphones stand?

i.e the Mitac, Asus etc or are they going to be screwed as well :?

[Guest Rob.P]

Good point, one thing though where do the new Smartphones stand? 

i.e the Mitac, Asus etc or are they going to be screwed as well :?

If that is the case that's too many phones, companies and competition for the market, hence I think they will not go in favour of Sendo. Scarifice the 1 for the many and all that.

[Guest Big Ron - No Longer a Mem]

Good point, one thing though where do the new Smartphones stand? 

i.e the Mitac, Asus etc or are they going to be screwed as well :?

Given the post you're replying to... that's an odd question. My point was that according to the Microsoft plan, the word "SmartphoneS" (plural) is a contradiction-in-terms. The Smartphone concept isn't just "a phone that runs Windows", it's ALSO inherently unlikely to vary more than cosmetically from the original reference design. So we're not really talking about a "range of phones", just ONE phone with a range of slightly different cases and logos depending on who "assembled the kit". One of the main attractions of this "D-i-Y kit" concept is that it's fast and cheap to get into production - you just use an existing design, so there's no R&D cost associated. You just use the design Microsoft provided. The issue being, does Microsoft OWN that design, or just "some of it"? It's POSSIBLE to produce a smartphone that ISN'T a close-copy of the original design - but to do so requires (a) co-operation from Microsoft (which reportedly isn't readily forthcoming) (:lol: spending a fortune on R&D to produce a product what will then compete with makes that DON'T have to recover the additional R&D costs and © some previous experience in phone manufacture would be an advantage, to avoid expensively "re-inventing the wheel".

If we were talking about a SLIGHTLY different scenario, where Microsoft were peddling not a design but a physical set of PARTS to be assembled, and some of those parts were stolen property, I don't think there would be as much confusion.

I'm interested to note that of Modaco's 7,000+ members, not ONE has yet posted in this thread to say "But that's NOT how it happened at all!"

[Guest wirefree90]

Has anyone here actually looked at the patent ?

[Guest awarner [MVP]]

Sorry Big Ron I was only generalising as I do not know how much involvement Sendo had on the development

of the Smartphone OS or did they just do the hardware?

wirefree90 probably not :?

[Guest Bazz]

A couple of points (not saying I necesarily agree with them - just playing devil's advocate really):

The difference between Symbian and Windows is "the nature of ownership" - join Symbian, and you're joining a club in which your opinions are listened to. Join Windows, and Microsoft calls the shots and has its own agenda.

Hasn't there been rumours running around that a few companies (mainly Nokia I think) are bullying everyone else on the Symbian group and they basically own that and it's a fairly closed group? Think I read this somewhere but am not sure.

and THAT is why the odd "if Sendo goes bankrupt..." clause was in the contract

Nothing odd about that as far as I'm concerned. I imagine most legal contracts have loads of clauses like this specifying exactly what sound happen in all cases (say at the end of a promotional GPRS tarif ;-)) Perhaps they did intend to bankrupt Sendo (which would be a well shoddy thing to do), but I don't think you can read too much into the fact that a multinational company like MS made sure they were covered legally if a small UK firm might go under.

One of the first claims they made in their internal "flash" presentation was to have "developed the phone jointly with Microsoft". Knowing what I now know, that strikes me as even more unlikely than it did back then - but it's an interesting claim.

Err why don't you believe that? They had some MS guys working at Orange for a bit. There was an Orange mast at MS's HQ. I'm pretty sure there was heavy communication between MS and Orange right from the beginning. I don't think HTC went up to Orange in November and said "You wanna sell these?" While the bulk of the hardware/software work was done by MS/Sendo/HTC that doesn't mean Orange weren't involved even if it was just to receive info rather than give it.

[Guest Monolithix [MVP]]

NB: There's also an O2 mask at MSHQ...

[Guest Big Ron - No Longer a Mem]

Sorry Big Ron I was only generalising as I do not know how much involvement Sendo had on the development

of the Smartphone OS or did they just do the hardware?

wirefree90 probably not :?

If you check over the news coverage of the Sendo/Microsoft case, one of the features seems to have been repeated requests by Sendo to make minor changes to the OS... and repeated refusals by MS to do so. I conclude that the work was fairly rigidly divided.

That ties in with some of the other subsequent posts (Nokia's bullying) As far as I'm aware, Nokia does NOT impose a "standard" Symbian - it's more like the GNU Linux license. If you want to modify it to fit your needs, you're free to do so. So the hardware design isn't stifled by the requirement to fit in with an unchangable software design. Again, I infer from that a standard "Look, sonny, YOU have toi fit in with US, not US fit in with YOU" attitude.

Microsoft pulled similar stunts with Novell - when they decided they wanted to get into networking - and Stacker - when they wanted to get into drive compression. A merger/joint venture is proposed, then a team from Redmond arrives "to ensure that the two product ranges are compatible", and learns everything they can about the previously unknown technology. Then the deal gets dropped. Microsoft set up in competition. And in the case of Stacker, it's subsequently found that the new Microsoft product includes a great deal of material pirated verbatim from Stacker code. So, I don't find it TOO hard to believe that they've pulled the same stunt a third time. These aren't "unfortunate accidents" - they're an inevitable consequence of Microsoft's attitude.

Microsoft's first project was developed "on the cheap", because Gates was a student at Harvard at the time, with student priveleges to access the Harvard computer for free. He abused those priveleges by "holding the computer room door open" so that a small team of programmers could use the Harvard computer for free, rather than paying for (back then, pretty expensive) computer time. Because nobody had envisioned such an open abuse of student priveleges, they hadn't made a rule expressly forbidding this. Microsoft's fortunes were FOUNDED on this kind of "well, it may be immoral, it may be barely LEGAL, but I think we can probably get away with it!" attitude. And these are just a few example from many. Problem is, pure greed tends to cloud the judgement on the "but I think we can get away with it" front. Sometimes, stepping WELL over the line is simply just too tempting.

[Guest Big Ron - No Longer a Mem]

"Nothing odd about that as far as I'm concerned. I imagine most legal contracts have loads of clauses like this specifying exactly what sound happen in all cases (say at the end of a promotional GPRS tarif ) Perhaps they did intend to bankrupt Sendo (which would be a well shoddy thing to do), but I don't think you can read too much into the fact that a multinational company like MS made sure they were covered legally if a small UK firm might go under. "

I wouldn't for a moment disagre with you about this being a "standard clause". But that's not the point. The issue here is the sequence of events. If Sendo had gone broke, then the clause would have come into force, and Microsoft would have been quite within their rights to take the IP that the clause gave them to HTC and ask them to put them into production. If I take out a life insurance policy on your life - if you die, I'm quite within my rights to spend the insurance money on a holiday. What's STRANGE here is that Microsoft "spent the money on the holiday" while the insured was still alive. It's as if there was a timetable in which Sendo WOULD go broke on a particular date. That wasn't part of Sendo's timetable - but it seems to have been part of Microsoft's. Unobligingly, Sendo simply refused to lay down and die because it was pencilled in on Microsoft's calendar. But Microsoft marched forwards with their own aganeda as if they HAD.

If I took out insurance on your life - with you in perfect health - and booked an expensive holiday for 1st August that I could ONLY afford if I'm in a position to claim on the policy, and there was a terrible car crash, which I miracurously survived, but in which you died, in Mid July... people would start asking VERY pointed questions about exactly HOW I knew you were going to die so conveniently in time for me to collect the insurance. And I suspect most people would think "murder" a lot more seriously than they'd think "psychic".

[Guest Big Ron - No Longer a Mem]

Semi-relevant, but nevertheless kind of interesting... There's a claim that the big US software companies are "mirrors" of their founders. They all started as small "startups" in which the founder picked employees that he got on with - and they tended as a result to be people very like themselves. So, you wind up with one company that likes to employ "Jocks", another that likes "class"... and Microsoft, that likes "nerds".

What makes that assertion (which does seem to have substance) interesting is the further claim that Gates isn't just a "nerd", but suffers from Asperger's Syndrome. That may - or may not - be true, but he certainly displays many of the symptoms. One of them is a complete absence of social skills. Plenty of stories of "institutional bullying" at the top level in Redmond. (And the way they treated non-technical staff! They all got laid off and their jobs put out to subcontractors. Many now work at the same jobs for LESS PAY, making the company more profitable for the stock-option-owning, already prosperous geeks) Point is... "right and wrong" can be kind of a grey area to people with some kinds of Asperger's Syndrome. Which would lead to the kind of behavious we've come to expect from Microsoft. It's not "greed" or "evil"... it's a form of mental illness. To get to the top in Refdmond, you don't HAVE to have Asperger's Syndrome - but displaying the symptoms won't damage your career, and failing to display them (like showing a conscience) IS likely to damage your prospects.

[Guest Bazz]

I was only arguing with the use of the word 'odd' in the phrase 'and THAT is why the odd "if Sendo goes bankrupt..." clause was in the contract.'

[Guest Bazz]

Big Ron, I'm not quite clear on this one - are you anti-MS ;-)

[Guest Big Ron - No Longer a Mem]

Big Ron, I'm not quite clear on this one - are you anti-MS ;-)

LoL

Not even SLIGHTLY Anti-MS.

But "anti-the-way-MS-behaves?" 101%!

[Guest Bazz]

Well they may have behaved badly in the past, and it's very possible they did this here (hence Sendo suing), but let's wait and see rather than accepting the filing of a law suit as proof of guilt.

[Guest Big Ron - No Longer a Mem]

Well they may have behaved badly in the past, and it's very possible they did this here (hence Sendo suing), but let's wait and see rather than accepting the filing of a law suit as proof of guilt.

While I think it considerably more likely that MS are guilty this time than not, (based mainly on the way Sendo have presented the evidence almost as a "diary of events". Hard to believe anyone would be dumb enough to put stuff into that diary that they hadn't first triple-checked, then checked again) I don't have them pre-convicted on THIS issue. But, i don't think it's unfair to call a guy with a long history of stealing stuff a "thief". It's not abuse, it's not "name calling" - just an accurate description.

[Guest DamianJauregui]

Okay, been reading this for a bit now and feel I have to add in my 2 cents worth...

1. The Symbian group is NOT a club. It's heavily controlled and monitored by MEN [Motorola, SonyEricsson and Nokia]. Loads of smaller developers and manufacturers are complaining about how closed the whole thing really is. Like writing a Java engine that will compete with Sun, ask Microsoft about this.

2. Sendo were promising the Z100 for ages but just couldn't come through with it. They are doing the same with the S550. It looks beautiful, etc. and is available from early June 2003, but I don't see it anywhere, and the developers can only get reference specs at the moment.

They have always produced bad phones based around ancient technology, and yet they suddenly seem to be the world pioneers and MS is taking advantage of them! I think that MS gave them the OS and then paid a lot towards the development of the handset, etc. but Sendo just couldn't come through.

Can anyone remember the head to head reviews of the SPV and the Z100? The Z100 was faster but overall lost to the SPV because the SPV was a better consumer product, i.e. it worked!

As I said at the beginning, just my 2 cents worth. :lol:

[Guest Big Ron - No Longer a Mem]

Can anyone remember the head to head reviews of the SPV and the Z100? The Z100 was faster but overall lost to the SPV because the SPV was a better consumer product, i.e. it worked!

As far as I recall, there was just ONE "head to head" review - in Personal Computer World. I recall showing it around at Orange. Their conclusion was not as you've suggested - their conclusion (with the proviso that they'd looked at pre-production models) was that the Sendo was the better handset, and the SPV the better PACKAGE - because of Orange's cut-price GPRS deal. As you'll doubtless be aware, that deal is now running to its conclusion.