Why Does Microsoft Want Weaker Patents?

Yesterday, a reporter asked me why Microsoft, a major patent holder, is continually arguing that patents are too strong.

Exhibit A: $1.5 billion verdict for Alcatel.

According to reports, about half of the damage award is based on foreign sales under 271(f).

38 thoughts on “Why Does Microsoft Want Weaker Patents?

  1. To Mark,

    While the case noted below may not be a software *patent* case, it is nonetheless a great “software” case and should be studied by all. I studied it in my first year of Copyrights.

    Boosey v. Whight, the 1899 English case exempted perforated [player piano] rolls from copyright law because they formed part of the mechanism of the player piano.

    Anyway, I think if you pick it apart, you might find that there are some patents that could be considered “software” patents before 1980. However, before the PTO published the Examination Guildelines for Computer-Related Inventions:

    link to uspto.gov

    the term software patent was probably not heard of.

    And who is this “anonymous” poster? I think Dennis might want to find out who this guy is and check his trench coat for a suspicious, shotgun-shaped, bulge.

    If anonymous wants examples of distinguished software oriented people who support a strong patent system he should check out Nathan Myhrvold’s testimony at:

    link to judiciary.house.gov

  2. “Why the Nobel laureates thought that a johnny come lately inventor should have the power to extort millions of dollars from, for example, Microsoft, because he had reinvented something that Microsoft had already been doing for years is a mystery to me.”

    Simple. The patent system is meant to encourage dissemination of knowledge. In your hypothetical, the patent system is meant to encourage Microsoft to share their knowldege so that others can learn from it–and compete (just not with an equivalent to the claimed invention).

    My guess is that the signatory Nobel Laureates were economists.

  3. small guy

    The letter you are linking to is a decade old. The hot issue seems to have been the introduction of prior user rights, namely that if, for example, Microsoft invents something and uses it but does not publish it or seek to patent it and someone comes along later and reinvents the same thing and does patent it then Microsoft, but not other potential users, would have a prior user rights defence to an infringement claim.

    Why the Nobel laureates thought that a johnny come lately inventor should have the power to extort millions of dollars from, for example, Microsoft, because he had reinvented something that Microsoft had already been doing for years is a mystery to me.

  4. That anonymous poster apparently doesn’t have a clue.

    Here it is – a letter signed by Nobel Prize winners asking the Congress NOT to change the
    time-tested US Patent System (This was about the previous attempt by the mobsters to change the rules of the game)

    OK, Hatch is now out of this, but the remaining players scare the hell out of me when they talk about something
    as complex as patent reform.

    Rep. Berman is one of those very scary politicians (forgive me for not using the word “idiot” – I am a democrat after all)

    Just relax, have a glass of good wine and listen to King Crimson:
    “The fate of all mankind I see is in the hands of fools”

    This country is on the path leading to self-destruction…
    Amen…

  5. Oh wait, and here’s one more of those “nobel prize winners”, Douglass North, who said:

    “asystematic set of incentives to encourage technological change and raise the private rate of return on innovation closer to the social rate of return was established only with the patent system…”
    Douglass C. North, Structure and Change in Economic History (New York, NY: W.W. Norton & Company, Inc.,1981), pp. 164-165

    I should also credit my source:

    link to sbecouncil.org

  6. “Have fun here, frothing and name calling and spitting and hissing at the larger world which won’t listen to your collective wisdom.”

    I’m pretty sure that had to be a joke. If this “anonymous” poster were even half as smart as he (or she) suggests he is, he would recognize that his post was exactly the name calling, spitting and hissing rant that he suggests we all resort to.

    But still, in the interest of complete disclosure, here’s a neat list of quite a few of those “nobel prize winners” that appear quite satisfied with the patent system:

    link to electro.patent-invent.com

    And here’s a note about 27 more “nobel prize winners” that apparantly also have a different view of the patent system as they have banded together to fight patent reform in its present incarnation as being bad for small business and the independent inventors:

    link to ndol.org

    I could probably come up with lots more counter evidence, but I didn’t want to waste more than the 5 minutes I just spent searching.

    I think we should give up trying to reform the patent system and focus on trying to rid the world of moronic idiots like “anonymous” that think they can curry favor to their opinion with name calling and the suggestion that all the smart people in the world agree with them so if you disagree then you must be stupid. Yeah, that might have worked in kindergarten.

  7. Wow, does that mean you don’t like patent lawyers,anonymous?-or did I read in too much to your post. The way they bisect,disect,and slice a topic like a Ronco kitchen gadget, actually,I find very interesting. Remember, patent law is a field of law-hence,the need for law dogs. If I needed help in an area of patent law,i would call an attorney-not a computer dude who writes code. Sorry,get over it.

  8. anonymous@anonymisse.com
    link to patentlyo.com

    I take no position on the issue of this thread. I do take a position on the referenced post.

    It is one thing to have an opinion and present it in a passionate manner. It is another thing to contribute nothing but insults to a discussion in which some may disagree with the opinion.

    The post was completely out of line.

  9. ” And only you and your patent attorney buddies on this blog- a special interest group if ever there was one with obvious financial motivations to want to perpetuate IP into every human sphere and deny every problem it causes.”

    Hey, not all of us patent attorneys belong to that group. Of course, some of us are reluctant to mention our bearishness for fear of being scolded for not drinking enough of that special zoloft-infused kool-aid …

  10. >>Because software wasn’t patentable until the early 1980s, there were no software patents vel non. The software industry otherwise did a pitiable job of documenting its work prior to its entry to the patent system.

    So you say. And only you and your patent attorney buddies on this blog- a special interest group if ever there was one with obvious financial motivations to want to perpetuate IP into every human sphere and deny every problem it causes.

    Do you have any idea how microscopically small your world and opinion are? So yuou’re asking us to believe that all the scientists who oppose sw patents are wrong, which is virtually all of them.

    Gee I don’t know, seems like you’re up against Nobel Prize winners in all areas of science. But their opinions are nothing compared to the impartial, dispassionate intelligence of patent attorneys who make their living directly from IP. Nobel prize winners and world renown scientists are to be dismissed and some lawyer who’s looking to get his palm greased is going to hold court.

    Only on this blog buddy.

    >>It is this lack of prior art that hampers software patents inherently and causes the issuance of the so-called bad patents in the area. Same is largely true of business methods.

    And you concluded this because of your well known and peer reviewed research which has been published…where exactly? Because it’s important, it’s a real contribution to the world’s knowledge and we should base public policy upon it, so please, show us your methods and data…

    Is this the level of “proof” that passes for knowledge? Some guy wishing it were so and therefore declaring it to be so? Hey eveyrone, Mark you thinks the documentation was poor ! Hey man, you Mark! And you know what else? It was clear and concise high quality documentation found in patents that has saved the computer science from itself.

    Yesss… folks this has been another episode of the Mighty Patent Lawyers…..

    Mark, Patent Maven- he’s everywhere! He’s everywhere!

    Of course Mark of course…as all my fellow computer scientists know, patents are the first place we go for clear documentation…

    Here’s reality. The best minds in the world, ( amongst which there are exactly zero patent attorneys ) are dead set against you and the expansion of IP. They have not been particularly attendant to to the issue, since it’s a stupid idea on the face of it and they have better things to do with their time. Now that you and your fellow cockroaches have a very few, very small victories, outside of the scope of COngress and the Supreme Court, you’re thinking your the lions of the jungle. In fact, you’re rather more like the vultures, and in fact, that is how you’re seen in science and by the public and increasingly by the courts and politicians.

    Well the adults are going to come back, and then it’s party over. So plan ahead.

    I have to say, no one in academia or research circles or even businesses has any sympathy for lawyers, and having been here a few weeks, I know see why. What goes on here is the lowest of low-rent reasoning and level of argumentation is abysmal. You’ve come across as nothing more than a bunch of special interest narcissists who are unusually prone to temper tantrums and name calling, while decorating their hot air with unearned certainty and authority.

    Here’s something you can understand in language you can understand. Computer scientists universally don’t want you in their field, and so you’re not going to be there, and no, no one cares what you think and, in fact, you’ve given precious little evidence that you ever did learn to think. The REAL adults in this world who make every little bit of your existence possible are going to see to it that you learn your place.

    Have fun here, frothing and name calling and spitting and hissing at the larger world which won’t listen to your collective wisdom.

    I am quite sure I have never encountered a larger collection of broken personalities anywhere and I am equally certain that I wont’ again.

    Have a nice life.

    link to news.zdnet.co.uk

  11. A group of economists from around Europe has issued a scathing critique of the European Parliament’s proposed law on software patents, arguing it would damage Europe’s software industry, while benefiting almost no one except patent lawyers.

  12. It should be added that this argument that software patents are a “hindrance” is specious. Well,by that standard, microelectronic patents are a hindrance too, which has resulted in large-scale cross-licensing throughout the industry.

    If software executives want to be mature businessmen and women, they will do the same instead of pitching their whiny monopolist fits.

    Another thing that should be added, innovation or no, Microsoft has a very unusual monopolistic position with their products. I’m not really sure they deserve a lot of credit for either innovation or marketing: they have a near-captive market.

  13. One thing not taken into account much in discussion of software patents is the beneficial purpose of the patent system to document “the art.” Because software wasn’t patentable until the early 1980s, there were no software patents vel non. The software industry otherwise did a pitiable job of documenting its work prior to its entry to the patent system. It is this lack of prior art that hampers software patents inherently and causes the issuance of the so-called bad patents in the area. Same is largely true of business methods.

    In the last 20 years, massive amounts of software functionality documentation has been generated by the industry’s entry into the patent system. Noone ever talks about this benefit.

  14. “i challenge anybody who reads this blog to name ONE innovation that came out of Microsoft”

    I am confused by the discussion of innovation. As I understand the term, “innovation” means to bring an new product (invention) to market. Recall that the IP clause is meant to promote invention, innovation, and dissemination.

    Microsoft has done an amazing job of producing and marketing new products, whether or not it invented them. My guess is that Microsoft is so much more efficient at producting and marketing new products (innovating) than its competition that it does not need patent protection for incentive to create new products (invent). For such a firm as Microsoft, IP protection would actually act as a hinderance to its business.

  15. “A clever attorney could draft hundreds if not thousands of vaguely worded claims which could capture some “key” aspect of an alleged “trolls” behavior.”

    In fact, now that I think of it, why not apply the caveman approach to patenting to cover methods of “trolling” for a product comprising a novel invention, i.e., in addition to claims describing your “novel” and “nonobvious” invention, include a set of claims which covers methods of using the patent system to extract profits derived, at least in part, from that novel invention.

    If the claims to your novel invention are valid, then claims covering methods of “trolling” your novel invention are necessarily “patentable”. Or so I’ve been informed.

    Then, when the troll comes after you, you can immediately file a countersuit, enjoining the troll from taking any further legal actions.

    Problem solved!!! ;)

  16. “The problem is magnified by the recent emergence of many patent trolls who, rightly or wrongly, make no products that could be countersued”

    Who needs products? This phenomenon you refer to as “trolling” is a method of making money.

    A clever attorney could draft hundreds if not thousands of vaguely worded claims which could capture some “key” aspect of an alleged “trolls” behavior.

    Fight fire with fire.

  17. “Third, most of the hysteria is driven by people not in a good position to even begin evaluating the strength/breadth of a patent.”

    I don’t know about “most,” but certainly “some”.

    But it’s also true that “some” of the patent lovin’ comes from people who aren’t in a good position to evaluate the strength/breadth of a patent.

    There are many many people out there with lots of money to invest who believe that patent applications — not patents, mind you, but applications — are really really cool and valuable.

    I know this because I am aware of CEOs who file applications for no other purpose except to “have some applications.” The applications do not include descriptions of “inventions” made by the company’s employees. Instead, the applications include descriptions of “stuff” that the company thinks “sounds good” and “looks impressive” to naive inventors.

    Welcome to America, folks. There is a lot of money out there. You just need to find a way to persuade people to give some of it to you in exchange for a favor of some sort. Lawyers are very well trained in the art of persuasion. Have you spoken with your attorney today?

  18. Before I was an attorney, I was a software developer. I find frequently that people overstate the patent coverage in software.

    First, millions of lines of code have been written and there are simply not that many patents. Most developers I know have never once been prevented from writing code. Indeed, the bigger concern for most companies and developers alike is a genuine fear of copyright.

    Second, software (and lines of code in particular) are not the things covered by most valid or enforceable patents. A particular system designed to do something is. That’s no different than any other industry in the world–to connect to the AT&T case, think of software as a gear or sprocket in a patented machine.

    Third, most of the hysteria is driven by people not in a good position to even begin evaluating the strength/breadth of a patent. I don’t know how often I see people complain about what a patent says in the abstract, or, even worse, in a published patent APPLICATION.

    Finally, a lot of patent litigation happens in a lot of different fields. Software is not special.

  19. To Software Vis

    “You can’t write two lines of code without crossing someone’s patent.”

    This is hysteria.

    If you weren’t so busy blogging SWVis you might be able to write a few lines of code and push that project along. That code isn’t going to write itself.

    MMmmm, yeah, I’m gonna have to ask you to…. go ahead and come in over the weekend. And make sure those TPS reports are on my desk by Monday morning, mmmmm yeah. Thanks a bunch.

  20. “i challenge anybody who reads this blog to name ONE innovation that came out of Microsoft”

    quick patent search for microsoft as assignee – 15,000+ patents and printed pubs. yes, they could have bought even most of these, but they have invented stuff people…

  21. Gideon (above) has the right idea. Weak patents are in the interest of any large company that dominates its field. Just in case no one has noticied, IBM has also been campaigning for narrower claim interpreations.

    Both companies offer large, complex products that are exposed to infringement on many fronts. Paying royalties on a single product to dozens or hundreds of different patent holders could sink any product economically. The problem is magnified by the recent emergence of many patent trolls who, rightly or wrongly, make no products that could be countersued, rendering the larger companies’ massive patent portfolios impotent against them.

    BTW, IBM’s dominant portfolio goal from the 1940s until a few years ago was called “freedom of action.” The idea was that no one could use a patent to prohibit IBM from offering a product or from entering a market, because IBM could countersue on at least one of its own patents to nullify its effect. Microsoft shares this goal; the reason they started late is that Nathan Myhrvold for a long time stongly opposed patenting software. When, after the halcyon days of OS/2, IBM extracted a mountain of royalties in a patent cross-license deal, Microsoft commenced immediately on a program to develop their own trading stock.

  22. “well, their business model is NOT innovation.
    in fact, i challenge anybody who reads this blog to name ONE innovation that came out of Microsoft.”

    I must say this is just nonsense. I have personally written hundreds of patent applications on behalf of Microsoft and can say without equivocation that there is LOTS of innovation going on out there.
    Some of these statements are just the product of jealousy and sore losers.

    Sure Microsoft buys lots of startups with good ideas. But that’s exactly what most startups want. They want to come up with a good idea, get patent protection on it, then hopefully a big player (like Microsoft) will buy their company and make them rich. I hear this story almost every day. In fact I just heard this exact story on the phone with another startup not 5 minutes ago! Really.

    Don’t mistake my common sense with an affinity for Microsoft. I actually don’t like the company that much, at least not their business practices. But I am smart enough to see the real picture without letting my own personal biases cloud my judgment.

  23. M$ bought DOS from the guy who wrote it, windowing and GUIs were developped by Xerox before anyone else had them (I’m not sure that Apple was even the second to use them, although certainly before M$), M$ had to drop their disk compression as it infringed on the patent for Stacker, they bought the firm that wrote the Visio drawing application that many in the patent business have used(along with other firms they bought that don’t come to mind right now), Internet Explorer is really Spyglass Mosaic (in early versions that was still visible if you clicked on ‘About’), MSN is a pale imitation of AOL/CompuServe, etc. … anything else I’ve missed? And no, I’ve never owned a Mac.

    To be fair, I like Visual Basic, but neither the BASIC language nor the visual programming paradigm were their ideas either.

    There’s no getting around the fact that most of their products are copies or simply bought in.

  24. >> The way MS looks at it, I’d guess, is that there are thousands of small time >>operators who filed thousands of patent applications and there is no way to >>effectively know what’s out there.

    >>Consequently, when you put out a product that has a tremendous number of components, >>the odds of stepping on one of those patents goes way up.

    Even more so for the rest of the software industry. You can’t write two lines of code without crossing someone’s patent. Which is why patenting software holds up progress, instead of incentivizing it. Since patents impede progress, we can conclude they are contrary to the Constitutionally mandated purpose of patents, which, by the way, is not to make patent lawyers rich. Therefore, there should not be software patents.

    It was refreshing to hear someone on this blog admit that no corporation, whatever its resources, can function in the current patent system.

    Glad we cleared that up.

    But your analysis is off.

    MS wants patents because only a mega-corp can really afford to bring a product to market when the entire code base has to be examined, at 20 grand a pop, for violation against existing patents (a situation you’ve admitted is beyond MS). In this way, MS seeks to exclude from the market both large (RedHat, Linux) and small competitors.

    link to news.com.com

    Of course, there are a few flies MS’s ointment.

    One is the phenomena of a “the troll.” A troll is an entity who, knowing that they cannot hope to bring value to the market in the traditional way owing to a Frankensteinian patent system, dares yet to seek to exist through a type of asymmetrical warfare. So MS wants to limit troll damages to whatever formula their lawyers can concoct, the so called proportional damages, then wear out the now resource starved “troll” with the threat of protracted litigation, and thus shut off competition from bright-idea, low resource entities.

    They seek to remove will infringement, because , well, they’re guilty as hell.

    They seek to move to first to file because their attorneys drop off this weeks bag of 60, yes folks I said SIXTY new, super-inventive software patent applications at the USPTO just before they deposit the same weeks checks for a billion into BankOne’s midnight drop slot. No big deal for them.

    link to eweek.com

  25. I don’t think Microsoft’s size or market share explains this fully.

    One of the quotes in the NYTimes article suggests that Microsoft’s predicament here, and its stance more generally, might be due to the fact that Microsoft got into the patenting game relatively late.

    Thus, the story would go something like this. Alcatel threatened to sue Microsoft. Microsoft didn’t have any sufficiently valuable patents in its stash that Alcatel was probably infringing, so it couldn’t threaten Alcatel with an equally damaging countersuit and offer a cross-licensing arrangement as an alternative. So it came to litigation and Microsoft lost.

    There’s some support for that story in Nathan Myhrvold’s testimony to the Judiciary Committee in 2005. He spent some time at Microsoft, and according to him, when he joined the company in the mid/late ’80s, “Microsoft had zero patents and just two patent applications.” It wasn’t until the late 80s/early ’90s that he and others got Microsoft’s R&D going and got Microsoft into patenting more aggressively.

    link to judiciary.house.gov

    On a somewhat unrelated note, for those of you on this board who like to comment on patent “trolls” and the relative merits of small inventors and large corporations, I suggest reading Mr. Myhrvold’s testimony. It’s fairly readable, and he’s worn a lot of “hats” in the technology industry, so it’s less likely to be biased than much of the other stuff out there.

  26. “i challenge anybody who reads this blog to name ONE innovation that came out of Microsoft”

    Uh, that little paperclip guy that always asks if I’m writing a letter?

  27. Moshe,

    To be more specific, Microsoft doesn’t have to “lift” anything – they just buy the start-up, which they have been doing regularly.

    Once a company gets to the size of Microsoft, they dislike competition. The mere fact that they don’t like strong patents is all the more reason FOR strong patents. Its like the classic antitrust complaint. If a competitor files a complaint against another competitor alleging anti-competitive practices, you can bet that the practices are anything but anti-competitive.

    Perhaps Microsoft should be put under a little more scrutiny by the DOJ.

    But I’m just a cave man.

  28. The one and only “king of the voir dire” Tom Melsheimer? Tom is a super trial attorney from a super law firm, if he couldn’t win this then it was not winnable. This must have been one heck of a trial. Yes, Virginia there really is such a thing as a good patent – invented by good people, for good purposes – to advance technology to the benefit of mankind, that isn’t ‘just obvious’ in 10 or 20 years of hindsight. Oh and sometimes . . . just sometimes, the invention remains important enough, long enough to be commercially important (MS didn’t come up with anything better in the last 10 years?). Oh and juries do “get it” (99 and 3/4 percent guaranteed more often than Justice Breyer ‘gets it’). The patent bar needs to stop this knee jerk – oh blame the jury system whenever a defendant loses a patent case (you can bet the same party crows to the moon about the sancticity of the jury result when the defense ‘wins’ a case).

    Hey wasn’t microsoft on the no-injunction ebay bandwagon? Careful what you ask for cause someone might just ask a jury to award that ‘filthy’ money damages to compensate for infringing assuming no-injunction will enter. You might be seeing bigger awards coming down the pipe.

    Hey what do you get when you cross alcatel (a frog) with a patent troll?

  29. First off, save the MS bashing for the “I sleep with my Mac” forum, please.

    Sure, microsoft has never generated a novel idea. It’s all been theft. Please. Try to be rational.

    It’s not about supporting MS. I’m no MS fan – I just can’t stand the constant and hysterical belly aching of Apple fans.

    Regarding patents, it’s not about theft of ideas. It’s about getting sued.

    The way MS looks at it, I’d guess, is that there are thousands of small time operators who filed thousands of patent applications and there is no way to effectivel know what’s out there.

    Consequently, when you put out a product that has a tremendous number of components, the odds of stepping on one of those patents goes way up.

    So for MS, which is established and a virtual monopoly, of course you’d rather have less patent protection -

    Simply because the risk of 1.5 billion dollar losses are much greater and your benefit to excluding competitors with your patents is not that great.

    To make this point clear, many people think that Apple makes superior products to MS. Well, what does that tell you, if true? It tells you that, even WITH better products on the market, MS can still keep the market share of those better products at 2%. So why would MS need patents?

    In other words, it’s just good business – if you want corporations to behave morally, you need to change the laws governing corporations.

  30. Microsoft’s attitude is the same as Wal-Mart’s…when the culture of the company is to copy, indeed the lifeblood of the way they do business, they will oppose any sort of IP that threatens it, and will fight you tooth and nail should you sue them; witness Wal-Mart’s longstanding opposition to any sort of improved design protection scheme…allied with all other big-box retailers.

  31. Even if Microsoft were an “innovative” company (Moshe is absolutely right), it still would oppose a strong patent system. As the big Gorilla it doesn’t need patents to protect its innovations. Even with a legally strong patent system, Microsoft is still a highly successful and respected pirate. It’s similar to the reason why the Chamber of Commerce is against unions. Gorillas are not in the business of sharing power.

  32. Microsoft was represented by Fish & Richardson, specifically Melsheimer in the Dallas office. Alcatel was represented by Kirkland, specifically John Desmaris.

  33. According to one news reporter, the case is styled: Lucent Technologies Inc. v. Gateway, Inc., No. 02CV2060.

    I believe the patents at issue are 5,341,457 and RE39,080, available at the USPTO web site.

  34. Does anyone have a handy link to the patent(s) in issue and/or a technical discussion of the content of the patent(s)?

  35. well, their business model is NOT innovation.
    in fact, i challenge anybody who reads this blog to name ONE innovation that came out of Microsoft.

    Microsoft’s model is to wait for another company to develop something, and then copy the product – maybe ‘include’ in the operating system or in office.

    even if the M-S copied product is inferior, their deep pockets and monopolistic position often prevails.

    strong patents mean that they can’t just lift every idea from every startup without deep pockets.

    of course Microsoft pays LIP SERVICE to the importance of patents. and they would NEVER say they are dismantling the patent system – just ‘improving it.’ they are sophisticated.

    what is ASTOUNDING, is that the open source people play into Microsoft’s hands by opposing software patents.

    another thing – many of my clients are software startups. it is quite common for VCs to ask “what about Microsoft [or Oracle, or another big company for 'patent fairness'] just taking the idea?” for this reason, VCs think it is important for fledgling startups to have competently-drafted patent applications before investing $$$$.

    the right to exclude the larger firms is CRITICAL for smaller firms.

    VCs are in the business of enriching their investors, not Bill Gates.

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