When will Microsoft admit the truth about software patents?

When will Microsoft admit the truth about software patents?

Summary: 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.

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The truth being they are more trouble than they are worth.

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.)

In Burning The Ships Microsoft lawyer Marshall Phelps, who previously developed IBM's successful IP regime, described many of the machinations.

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.

Topics: IT Employment, CXO, Legal, Microsoft, Software

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22 comments
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  • HERETIC !

    My patent is better than you patent!
    What a waste of resources!
    I couldn't agree with you more.
    Now for the sharks in the suits .... what are they to do if they have to keep their Lexus more than 6 months?
    kd5auq
  • Duh!

    I simply do not understand the warped reasoning that would make any software company that looks into the future, not see the obvious dangers of software patents. Right now, virtually every software developer violates multiple software patents, and survives only by crossing his fingers that his project will go unnoticed.

    The thing is, MS will probably escape immediate harm from the situation because I4i likely infringes on some of its own patents. But if MS loses the patent case in the end, will it be able convince I4i not to go after developers in its .Net ecosystem? Patents really are like land mines, and I believe it is only just a matter of time before developers' luck run out on the them.
    P. Douglas
  • Bilski / Donald Knuth

    [b]Bilski[/b]
    What is a patentable 'process'?
    What is a 'process'?

    FYI,

    http://www.patentlyo.com/patent/2009/08/bilskis-patent-application.html

    [b]Donald Knuth - Donald Knuth: Mathematical Ideas, or Algorithms, Should Not Be Patented[/b]

    http://www.groklaw.net/articlebasic.php?story=20090603224807259
    Dietrich®
    • RE: When will Microsoft admit the truth about software patents?

      Copyright is the best protection for software. It lasts longer, you dont have to make a big filing on it, you dont have to open the kimono to win in court.<a href="http://ipadbagblog.com/"><font color="LightGrey"> k</font></a>
      zakkiromi
  • Shoulders of Giants

    As Newton once famously said: "If I have seen further
    it is only by standing on the shoulders of giants."

    In all areas of computer science we build on what came
    before us. Many "patentable" ideas today are simply
    the next logical step of what came before it. Other
    patents are simply combinations of two or more
    previous ideas. Patents having a rough framework of
    twenty years were acceptable when the turn-over period
    of technology was likewise long. In the stone-soup
    analogy now that technology is advancing at a more
    rapid pace it makes sense to pool knowledge for the
    benefit of everyone including people who would have
    been patent holders. If we must have patents on
    mathematical expressions such as computer software
    then the exclusive time period should reflect the
    nature of computing today: no more than five years.

    "Protection" of ideas in all forms is based on the
    concept of scarcity. With the rise of the Network the
    base assumptions of all these schemes needs to be re-
    examined; we can all be richly served by the bits
    flowing through the wires. Distribution and
    reproduction costs have dropped to minuscule
    proportions. Take entertainment software as an
    example: it is composed of engines, models, sounds,
    textures. There is no reason that in twenty years
    from now there won't be enough of these assets
    available to mix together at home a work that rivals
    what the best effort of a commercial developer can
    offer today. Exclusivity is dying and it will be
    replaced with the "re-mix" culture. It is only a
    matter of time.
    BP314
    • Newton was being sarcastic

      He was making fun of a rival, Hooke, who was very short--basically disclaiming that Hooke contributed anything to Newton's findings.

      Computer software isn't a mathematical expression, but it takes a lot of work and creativity. That's what patents & copyrights are for--it doesn't matter to me how the lawyers go about protecting the code, but there has to be some level of protection. Otherwise people would just decompile Windows/Office and it would basically be free.

      And then imagine the innovation that would happen in either of the products; even Firefox (the representative of free software working) requires a profitable software company (Google) to fund its operations. Protecting intellectual property is key in an industry that is solely based on intellectual property: just look at the music industry.
      opiner332
      • How to secure your words

        Do not speak (or write) them.

        Intellectual property is a product of the mind. To secure your intellectual property, do not think it. And most especially, do not sell it and then try to take it back. To do so is fraud.
        Ole Man
      • Fundamental Differing

        Openness paired with the network is changing
        the playing field. In a commercial setting you
        pay someone to organize the bits for you. In
        an Open setting you build upon the works of
        others. Richard M. Stallman provided the GNU
        (GNU's Not Unix) base that Linus Torvalds built
        his kernal on. This accretion of effort will
        not go away. Eventually there will be enough
        Free content that it will reach a tipping-point
        and re-mixes and mashes in Open productions
        will rival and surpass todays commercial
        software. Openness is forever unless giving
        away your work is criminalized. Commercial
        ventures will always be around but in the
        inexorable Open future when it arrives they
        will be the exception instead of todays norm.
        BP314
      • Protection for the code

        What is wrong with copyright? Talk all you want
        about "protecting intellectual property." There
        are two protections, patent and copyright.
        Copyright seems to work rather well. What's the
        matter with it? Why is it inadequate?
        DanaBlankenhorn
    • One observation...

      If you note how long the court cases take, 5 years puts patents in the kind of, "Why did I bother defending it?" class.
      zkiwi
      • Flash in the pan

        For situations where something is truly novel and
        unobvious (to someone in that field) you should
        only get five years for "promoting the progress"
        at most. This does not rule out retroactively
        collecting your payment even a decade later once
        everything is sorted. Although I still believe
        that progress would be greater promoted without
        patents at all.
        BP314
        • Right on the nose

          or between the eyes, depending on how one sees it.

          Or a dead ringer, obvious to (almost) everyone.
          Ole Man
  • great article

    that's it.
    chrome_slinky@...
  • RE: When will Microsoft admit the truth about software patents?

    Copyright protects expression of ideas, not ideas. Patents protect ideas. The only way to protect the idea behind a software concept is through a patent.
    joecpolimeni
    • Does the idea behind a softwrae concept deserve protection?

      I mean, separate from the protection afforded
      copyright. Will anyone stop writing software if
      the ideas behind writing it aren't subject to
      monopoly rights (and monopoly rents) for 17 years.
      DanaBlankenhorn
      • Triple Threat

        Software is the only industry which gets triple protection on IP:
        1) Patents on the underlying concepts without specific implementation details.
        2) Trade secrets of the implementation details (source code is not available by default), and
        3) Copyrights on both the source code and the compiled binary.
        No one else gets that much protection. Normally, a book, song, or movie falls into the public domain and can be re-edited and re-published. Binaries can't.

        Copyrights on source code and binaries should be enough protection for software companies. Source code should be required to be available for all binaries so that they don't have to be reverse engineered once copyright lapses. (Note that this does not mean that anyone can use the source code since doing so would create a derivative work.) The openness of the code will show when someone has done that. If you want trade secrets, give up the copyright, and vice versa.

        Patenting how to combine two elements to make a new kind of transistor is not the same as patenting the use of markup language to sync smart phones. Patents do not belong in software.
        daengbo
  • Here Here!

    Amen to that Dana. I've really liked your articles lately, they've been getting better and better. And Microsoft, while holding more patents than most software companies, benefits the most of anyone by seeing an end to software patents. Let's hope they see it the way you do.
    LiquidLearner
    • Stick around long enough and you learn something

      I've been doing this for 30 years, and writing
      blog posts (as opposed to news stories or
      magazine articles) has proven a difficult
      challenge.

      It's interesting. A bit like learning a new
      computer language.

      There's more than writing involved. There's
      learning the audience, the beat, and knowing
      what draws a reaction. There's also something
      about leaving stuff out. Usually when I write
      something that answers all the questions I hear
      crickets, while if I leave things open-ended I
      can get called names.

      Getting called names is, believe it or not,
      highly profitable. More profitable than blogging
      straight news. This is an ethical dilemma I have
      yet fully develop.

      In other words, more to learn.
      DanaBlankenhorn
      • The best of ZDNet

        You are, as far as I'm concerned, although I have noticed you backsliding more than once.

        Keep up the good work, and leave well enough alone.
        Ole Man
      • Sad

        I very much enjoy your posts Dana, both here and on SmartPlanet.

        It saddens me that the crickets are not as profitable as the name calling. I appreciate the depth at which you attempt to tackle any subject you write about. I enjoy good journalism. But it's true, when you've done a fantastic job in my opinion, I don't feel inclined to leave a comment.

        On some of the comment pages on news feeds (such as cbc.ca/news), I see little thumbs up and thumbs down markers which allow me to vote on the comments. I think these reduce the number of comments left because people simply mark their opinion of the comments instead of leaving comments. The site tracks you (probably with a cookie) so you can't leave comments again. What I don't see, and would very much like to see, is the same thing for the article itself. It would be nice to be able to click on an icon after an article to indicate that I enjoyed it (or even enjoyed it a lot) without needing to leave a comment. You may want to suggest this to ZDnet and SmartPlanet. It may be one of the few ways that good journalism can be made rewarding and profitable in the internet age.
        mheartwood