Ever since the State Street case set off a gold rush to patent software, and software concepts, Microsoft has been
tieingtying itself in knots.
(Here is a fun game. Invite your favorite Microsoft employee to lunch and then show up in this snazzy t-shirt from Zazzle.com. Inspiration for Insanity indeed.)
He writes Microsoft felt forced to abandon the Non-Assertion of Patents (NAP) clauses in its standard contracts, then patented every strand of code it could, then tried to use those patents to push itself into new areas like Linux.
Not only has its reputation been shattered by all this -- Microsoft is routinely satirized as a force of implacable evil -- but 10 years later it remains subject to patent blackmail.
As the i4i case shows Microsoft remains Gulliver in Lilliput when it comes to the patent bar of the Eastern District of Texas. The i4i code was originally an add-on to Word and when Microsoft added native support for this XML functionality the plaintiff pounced. Its litigation team rolled Microsoft's lawyers the way Mexico's soccer team rolled over the USA yesterday.
Microsoft does not need major changes to patent law in order to make this nightmare end. Despite the adjustments made by in re Bilski, the problem remains what it has been for a decade.
Software patents are more trouble than they are worth.
In every other area of invention, companies can easily invent themselves around patent claims. You build a better mousetrap. No one can protect the idea of hating meeses to pieces.
Copyright is the best protection for software. It lasts longer, you don't have to make a big filing on it, you don't have to open the kimono to win in court.
Just file a case to overturn State Street, or limit your lobbying to a call for an end to software patents. Eben Moglen will give you a victory hug. The medical boys won't object. You'll get some of your reputation back, and you can go back to doing business instead of running a law firm.