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Microsoft and patents

In Microsoft claims software like Linux violates its patents, Fortune's Roger Parloff writes about Microsoft's assertions that free software violates its patents.  It's a wide ranging piece with frequent quotes from Microsoft General Counsel Brad Smith. And of course, it has set off a predictable storm of abuse from free software advocates. 

Really, who couldn't see this one coming?

For over a decade, the team in Redmond has been accumulating software patents.  First, it was defensive.  Then the company discovered how much leverage patents could give them in a negotiation.  And finally, they've now apparently embarked on a strategy to use them competitively. 

Fortune enumerates the options Microsoft had open to them. 

  • do nothing, effectively donating them to the development community. Obviously that "wasn't very attractive in terms of our shareholders," Smith says.
  • start suing other companies to stop them from using its patents. That was a nonstarter too, Smith says: "It was going to get in the way of everything we were trying to accomplish in terms of [improving] our connections with other companies, the promotion of interoperability, the desires of customers."
  • begin licensing its patents to other companies in exchange for either royalties or access to their patents (a "cross-licensing" deal).

They chose the licensing option, which, in point of fact was the only rational option.   Licensing reinforces the value of the portfolio they have accumulated, while providing a revenue stream to shareholders.

It's a tricky path to tread.  It requires extracting a royalty from Fortune 500 corporations for non-Microsoft software in use inside those companies, and it will only work so long as all of the companies being approached pay up.  When one chooses to fight in court, the entire strategy can unravel, as the validity of the patents are tested. This strategy could be a pre-cursor to a general amnesty, or to an attempt to mount an attack directly on the GPL controlled Linux kernel. 

For the record, I'm a believer in software patents, as well as many other kinds of intellectual property protection.  Software is as complex a machine as any physical machine, and those who engineer it should have the right to decide how it's used.  That's one reason that iotum is very careful about any use of GPL licensed code in our products. 

{ 4 comments… add one }

  • Peter Childs May 14, 2007, 7:43 am

    This will be interesting in light of the recent US Supreme Court decision in KSR vs. Teleflex.

    Essentially the concept of “obviousness” has been refined so that it may be more difficult to assert patent protection where a new approach is a creative concept that uses multiple patented concepts to produce something new. (I hope I’ve captured the crux of the decision)

    In the short term it looks like a heyday for patent lawyers as the tests require interpretation – in the longer term it could bring balance back into the patent system – by encouraging creative innovation – which was one of the goals of the patent system.

    Protection is the other equally important part – where copying not innovation is involved.

  • Alec May 15, 2007, 5:40 am

    It may be, Peter. I know at the time I was at Microsoft, many of the company’s patents on core technology, like the OS, were far from “obvious”. I think this will be a very interesting gambit to watch play out.

  • Mike Clark May 15, 2007, 4:04 pm

    The patent system is supposed to protect innovation and the creation of something new, not the copying of something else, no matter how difficult. Microsoft has never innovated, they have simply copied and, sometimes, refined. MS-DOS ripped off Unix and CP/M, Word ripped off Wordperfect, Excel ripped off Lotus 123 and Visicalc. Windows ripped off Macintosh (which had ripped off Xerox PARC development). IE ripped off Netscape and Mosaic. The list goes on.

    Why doesn't Microsoft just publish all the supposed patent violations? If they are valid, say like, certain memory management algorithms, etc, then the open source world can quickly correct the issue so there is no violation.

  • Alec May 15, 2007, 4:34 pm

    Yawn… c'mon Mike. Publish the patents? Sure… go to USPTO.GOV and look them up. All of Microsoft's patents are in the public record, just like every other patent.

    And you know what? You're dead wrong on IE. The IE source code was LICENSED from Spyglass, who owned the Mosaic licensing rights, and PREDATED Netscape. I should know, I was in charge of product management for IE 1 and 2.

    Get your facts straight, cure your rabid Microsoft fever, and you'll be able to make a much better argument in the future.

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