'"That doesn't make any sense," replies Matusow [of Microsoft]. "There's no logic to it. Why would you patent something in a space where you know there is prior art? There would be litigation, and you would know you couldn't be successful."'
Three reasons:
1) The US Patent Office does not seem very good with software prior art and appears to turn out software patents at an enormous rate whether they are valid or not.
2) It is important to shareholders that Microsoft gets more patents every year. They have a stated aim that they intend to massively increase their patent portfolio. Every patent counts whether it is a valid patent or not. Almost NO software patents are ever tested in court.
3) Even if your patent is a rubbish patent, the costs for someone to disprove your patent are not insignificant. Most small companies cannot even afford to challenge an obviously bad patent since, in a patent action, each side carries its own costs. They may go bankrupt before they win. If you doubt this then check out the story of the patent for FM radio and how RCA's patent action contributed to the death of Edwin Armstrong, FM radio's inventor.
With those factors working in your favour, why not patent everything in sight? It is more likely to work for you than against you even if your patent is worthless.
In reaction to this weekend's revelation that Microsoft filed a patent in October 2005 for an invention they knew had prior art, the software giant has filed an "express abandonment of the application" with the US Patent and Trademark Office (USPTO) according to Jason Matusow, Sr. Director of IP and Interoperability at Microsoft. "It was simply an error," he said in a phone interview Monday night.
According to Matusow, three Microsoft researchers were working with a legal team to patent some code that surrounded and integrated"Our sincere apologies to Michael Kölling and the BlueJ community" the Object Bench technology from BlueJ. "We were aware there was prior art," he said, indicating that the researchers were familiar with BlueJ. But according to Matusow, there was a miscommunication between the researchers and the lawyers, and as a result the application was submitted for Object Bench itself instead of the surrounding code that Microsoft created. "We process over 2000 patent applications a year", he says, indicating that mistakes are bound to happen. However, "patent quality is incredibly important" to Microsoft, in part to reduce frivolous patent litigation. "If there is higher patent quality, you'll have far fewer suits," says Matusow. "That's why Microsoft responded so quickly to this situation."
"This is indeed very good news," says Michael Kölling, who sounded the alarm on the Microsoft application Friday. But he's not totally convinced by the accident explanation. "I don't think that the filing of patents where prior art exists is an accident," Kölling told me after I contacted him Monday, "and I believe that Microsoft knowingly uses this as a business strategy."
"That doesn't make any sense," replies Matusow. "There's no logic to it. Why would you patent something in a space where you know there is prior art? There would be litigation, and you would know you couldn't be successful."
Product manager Dan Fernandez confirmed the patent application would be pulled. In his blog he wrote "the patent application was a mistake and one that should not have happened. To fix this, Microsoft will be removing the patent application in question. Our sincere apologies to Michael Kölling and the BlueJ community."
One interesting outcome of all this is a new appreciation by all parties of the power of blogs. According to Matusow, Microsoft has over 3000 bloggers, which helped improve the quickness of the response. In his mind this incident only strengthens the case for customer-facing blogs. For example, blogger Fernandez was instrumental in notifying the right people within Microsoft to get the issue resolved, even during the weekend. Kölling praised the people at Microsoft who write blogs and interact with the academic community for being "professional, friendly, and reasonable."
On the larger question of software patents and borrowing ideas and features, Microsoft's Matusow says that patents are a necessity of life in the corporate world. "Within the academic community, attribution is the primary currency. But in the corporate world," he added, "investors are looking for a return on investment. The work we do with R&D is of high value and we'd like to see that protected."
Having so many patents allows Microsoft to make cross-licensing deals with numerous other companies such as Cisco, HP, SAP, and Novel. While Microsoft does derive some income from licensing their patent portfolio, overall such licensing is a net loss to the company. According to Matusow, "Microsoft pays out more than 10 times what we take in to license intellectual property." In the Novel deal, for example, Microsoft paid to gain access to Novel's patents in the area of directory services, among other things.
"The most amazing thing I have learned through all of this," muses Kölling, "is how effective internet visibility can be in influencing even large corporations. I was quite surprised at that".
Related articles:
- Microsoft copies BlueJ, admits it, then patents it
- Microsoft backpedals on programming patent
- The Latest on The Microsoft Patent Application (Michael Kölling's blog)
- Response to BlueJ Patent Issues (Dan Fernandez's blog)
