We are all victims of the patent system

by Matt Asay

I had a conversation with Bill Hilf not long ago. We were talking about the Microsoft-Novell deal, but the conversation ended much more broadly, discussing the US patent system. It's the same conversation I've had with Jason Matusow, and a range of others both inside and outside of Microsoft.

The conversation goes like this: we don't like the patent system, but we're forced to work within it. That means both licensing patents (to and from others). It means occasional sabre rattling (when you think someone is infringing your patents). And it means (very) occasionl patent suits. (Microsoft, for its part, has almost never actually ligitigated its patent portfolio, to its credit).

Funny enough, these were the same sorts of things I spent my Masters degree working on. The degree was in International Conflict Analysis, which basically boils down to, "It's a cruddy world, but we have to make do."

I'm not naive. I don't think Microsoft can afford to lay down its patent portfolio and hug and kiss everyone. Others certainly don't seem to be willing to do the same for Microsoft.

I do wonder, however, if there's a better way to leverage it; one that doesn't require the occasional FUD bomb.

Part of the GPL's genius is that it allows you to have a copyright and exercise control with it, but transparent (and, I would argue, benevolent) control. You grant rights, but you don't give up any in the process. I wonder if there's a way for Microsoft (and others) to make their patents available in such a way that they can be used, but not easily used against the holder. I haven't thought this through (just thinking out loud here), but it seems like this is the sort of aggressive move that would speak well to Microsoft's competitive inclination, without making it prey to others who opted to horde their own patent portfolios.

Again, just thinking out loud. I suggest this for Microsoft because for all the grief I give the company, Microsoft has generally been an innocuous holder of intellectual property, whatever its other faults. The company has rarely sued anyone. It has a comparatively anemic licensing business from its patents. Etc.

So maybe Microsoft could afford to take a "patent-left" approach to its patents. Or maybe it's late and someone left the gas on.... :-)


2007-02-27 00:39:11
You might be interested to see the outcome of a recent UK government petition regarding software patents.


"The Government remains committed to its policy that no patents should exist for inventions which make advances lying solely in the field of software. Although certain jurisdictions, such as the US, allow more liberal patenting of software-based inventions, these patents cannot be enforced in the UK."

Aaron 'Teejay' Trevena
2007-02-27 02:29:49
I think Microsoft's portfolio is only of value as long as it keeps the powder dry and never actually uses it, although it has threatened to frequently, and previously against small software businesses who can't afford to defend themselves even against the mostly invalid and unoriginal tosh that MS has patented thus far.

This is reflected in how MS has never actually gone to court, as it knows if most of it's patents were challenged it would lose them, and that doing so would expose the huge flaw in software patenting - that they currently strengthen the position of the largest companies like IBM and MS while weakening the position of any other company that produces actual products or has actual customers - the only winners are lawyers, and patent troll shell companies with no products that could infringe and no customers that could be scared off.

2007-02-27 21:24:15
Microsoft can grant their patents 'subject to reciprocity' I believe, similar to what Sun did with OpenDocument. MS has nothing to fear from Free Software projects; only patent trolls who are not producing any product anyhow and therefore see no need to cross-license, just collect royalties.