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Groklaw Says Microsoft Patent Portfolio Now Worthless
Posted by
CmdrTaco
on Mon Nov 24, 2008 01:01 PM
from the along-with-most-patents dept.
from the along-with-most-patents dept.
twitter writes "P.J. concludes her look at the Bilski decision: 'you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." ... He was not the only attorney to think about Microsoft in writing about Bilski.'"
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What is a machine? (Score:5, Funny)
Re:What is a machine? (Score:5, Funny)
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Turing machines and turning machines (Score:5, Insightful)
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Re:Turing machines and turning machines (Score:5, Funny)
Linear bounded automaton, AKA Joe Six-pack
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"Microsoft doesn't make machines." (Score:5, Informative)
dont they make XBOXs ...
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Re: (Score:3, Informative)
I have RTFA but not the legal documents it references, so what I say here is based on speculating on a few lines in TFA.
It looks to me like any method patent which isn't specific to a particular lump of hardware which implements it (ie. a pure software patent, as opposed to, say, a patent covering a piece of software which is then loaded onto a device sold by the manufacturer) is invalid.
Re:"Microsoft doesn't make machines." (Score:5, Interesting)
let's have a look at the innards of my son's xbox crystal which he just drowned in orange-flavoured soda...
HDD: Seagate. No. ...in fact, I don't see one single component in there that has a Microsoft logo on it. Given that the HDD and some other components actually state "made in Taiwan" somewhere on the label, I can only conclude that the box was assembled in China. The software, on the other hand...
Processor: Intel. No.
Memory: Samsung. no.
Northbridge: NVidia. No.
GPU: NVidia. No.
various I/O, timer and controller chips: Texas Instruments. No.
Controller ports: I have no idea. Possibly not, although they are in essence, usb ports with slightly more robust terminal connections.
kernel/UI: is a multiboot system. He has the choice between the classic xbox Win2K kernel/UI (Microsoft), the extended interface that allows him to copy games directly to the HDD and do all manner of other wonderful and weird stuff to the system and play any of several thousand in situ games via any of the dozen or so emulators (almost certainly not Microsoft), and Linux (ha!).
So no, they don't make machines. Their scrollwheel mice were built by Logitech (albeit maybe to Microsoft's specification). The kernel software that shipped with the xbox classic was... well, sort of. Microsoft codeveloped NT with IBM under the label "OS/2". OS/2 died a horrible death, NT was a victim of its own success.
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Re:"Microsoft doesn't make machines." (Score:5, Insightful)
And Logitech outsources to factories in China, which get the raw materials from other companies, who lease the mineral rights from governments, which exist only through the will of the people, who were born from some other people, ad infinitum. Your point? For all practical purposes, Microsoft indeed makes mice and Xboxes, and Apple makes Macs and iPods. The person who signs the paycheck of the assembly line worker is irrelevant.
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Re: (Score:3, Insightful)
So you're saying that Microsoft didn't build the Xbox because it was built out of components from Microsoft suppliers? Then I suppose you want to credit STMicroelectronics [findarticles.com] and others as the manufacturer of that "Seagate" HDD? [Yes, I know the article's old, but it was the first one I found mentioning one of Seagate's suppliers and I didn't feel like searching for a more recent one
Re:"Microsoft doesn't make machines." (Score:4, Interesting)
Truly horrid... it died for lack of Windows compatibility. And it lacked Windows compatibility because Microsoft was able to convince a judge that Windows 95 was a new and unique product, not covered under the settlement order requiring Microsoft to hand over their API code (enforced through WFW3.11, including win32s).
I might still be using it today, otherwise.
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Re:"Microsoft doesn't make machines." (Score:5, Informative)
no, NT was a rename of the OS/2 3.0 development snapshot which Microsoft ended up with after their spat with IBM in the early 1990's and continued to evolve into the NT kernel, which they first used in NT3.1, released on 27 July 1993.
The reason NT started at version 3 is because versions 1 and 2 were already released as the collaborative effort and named OS/2 versions 1 and 2.
(sources: MSDN, Technet, Wikipedia - all correspond with each other timeline-wise and factually, so they can't /all/ be wrong).
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Re:"Microsoft doesn't make machines." (Score:5, Informative)
The NT kernel was mostly the vision of Dave Cutler, and you can see his VMS roots in places. While OS/2 was co-developed with IBM, the "OS/2 parts" of the NT kernel were mostly hidden in the OS/2 compatibility layer (which technically isn't the kernal at all). Win32 was a new direction, and IMO reflected Dave Cutler's work on making VMS work with 32-bit addressing.
On top of the kernel, NT offered the choice of programming against Win32, WOW, the POSIX-compatility layer, or the OS/2-compatility layer. The fact that you could write against multiple compatibility layers, and these layers could wrap multiple kernels (Win95, plus NT for I386, Alpha, AMD64, Itanic), was the key to Microsoft's early success: they used to be all about backwards compatibility.
Now, for some reason, Microsoft seems to disdain any sort of backwards compatibility. Clearly a culture shift.
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Not so fast (Score:4, Funny)
What if you use virtual memory?
Ha!
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Re:Not so fast (Score:4, Insightful)
What if you use virtual memory?
In this universe, you get Virtual memory exhausted (ENOMEM) and then the OOM killer forces your program to halt.
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Re: (Score:3, Funny)
Do we really want to limit ourselves to a single universe? That's the kind of short-sighted thinking that led us to the Y2K bug.
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It doesn't matter... (Score:5, Interesting)
I think Microsoft wins either way. They are not generally a patent troll company, nor are other large companies (IBM) with massive patent portfolios. If their strategy was to countersue little companies which had (somewhat) frivolous patents as a defensive measurement, they win either way. Either their patents are valid, in which case they have a good defense strategy, or they are not, and neither are the patent-troll lawsuit patents. I read somewhere it costs $10,000 or so to file a patent. This is chump change to Microsoft.
Re:It doesn't matter... (Score:5, Insightful)
It depends on how you file, whether you use a law firm etc. What is certain is that defending a patent is NOT cheap. Going up against MS is kind of like a college kid who can't really afford school trying to defend themselves against the RIAA.
If software patents fall away to only those that actually make sense, or fewer, perhaps the industry can get back to making innovative software and creating value rather than working on protective measures to stave off patent suits.
Thinking laterally, this means also that smaller developers won't have to worry so much about falling foul of patents. This is nothing but a good thing.
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Re:It doesn't matter... (Score:5, Insightful)
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Re:It doesn't matter... (Score:5, Insightful)
Right. But it's effectively no change... Microsoft really can't afford to piss off IBM with a patent suit against anyone over Linux. That's what SCO v. IBM has shown the world -- IBM is the world's largest patent holder, they've staked a good portion of their business on Linux, and if you mess with Linux, IBM is going to send their Nazgul after you, just as they 'blackened the skies of Lindon, UT' with lawyers.
Even Microsoft can't go up against IBM in a patent fight. Tring to beat IBM in a patent fight is like trying to take down an F-22 with a slingshot.
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Re: (Score:3, Informative)
If the threats are just paranoia, why is Novell paying Microsoft for patent coverage for all their GPL distributions?
Re:It doesn't matter... (Score:5, Interesting)
I read somewhere it costs $10,000 or so to file a patent.
I think the costs (depending on if you qualify as a "small entity") vary on filing fees [uspto.gov] ... you should really point out that the $10k figure comes from patent lawyers you hire to make sure your patent comes through in a timely fashion. If you don't have an army of those, the smallest slip of forgetting to cross reference another patent could cost you decades. Yes, refiling and additional services listed on that page will drive the price up but a timely patent is probably worth much more than what you would save if you didn't have a patent lawyer. If it's a one time thing, I would suggest finding a firm.
This is chump change to Microsoft.
If you're applying for 10 or 20 patents a week then this isn't "chump change." It's more than likely several million dollars a year for an entity like Microsoft. I think it's still important to Microsoft because of what investors see a patent portfolio as: pure assets.
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Re: (Score:3, Informative)
They aren't a patent troll company? Short memory?
http://yro.slashdot.org/article.pl?sid=07/05/14/0018242 [slashdot.org] etc.
Re:It doesn't matter... (Score:5, Interesting)
I think Microsoft wins either way. They are not generally a patent troll company, nor are other large companies (IBM) with massive patent portfolios.
Just because they aren't trolls doesn't mean they do not make a significant portion of their income from patent licensing. If their patents are no longer valid, then obviously their licensees are going to stop paying royalties.
While I am too lazy to dig for URLs right now, if you look, you will find that patent licensing is a huge part of IBM's business nowadays and that about a decade ago, Microsoft hired the man chiefly responsible for monetizing IBM's patent portfolio so that he could do the same for Microsoft.
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Some patents still apply (Score:5, Informative)
Re:Some patents still apply (Score:4, Informative)
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Re:Some patents still apply (Score:5, Insightful)
They've got a patent on an optical mouse using a blue LED, don't they?
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Mice, keyboards, xbox, ... (Score:4, Informative)
Microsoft has put out some good hardware over the years. They must surely own some patents that cover this stuff.
Re: (Score:3, Funny)
patents on mice. That'll keep their monopoly intact.
Re:Mice, keyboards, xbox, ... (Score:4, Interesting)
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MS wins with relaxed IP (Score:3, Interesting)
The whole reason the patent system exists is so that the "little guy" will have incentive to make a product without fear of the big guy stomping them. Of course, it turns out that the big guy with a 1000 patents a year deters any competition, so, there's obviously going to be more competition if this ruling means as the article says. But, at the same time, if I genuinely do make a product that is new, then, big companies will be allowed to take it. In fact, anyone will.
As such, patents aren't -that- bad, but just imagine if copyrights were also deregulated to a degree. Yeah, people might be able to copy madonna songs more freely (as terrible a thing to do as that is), but, at the same time, the GPL would lose quite a bit of its teeth as its only as good as the rights the code authors have. If you are MS, looking at a billion in Windows development costs a year, suddenly a few hundred million in political "donations" in favor of candidates that are willing to legislate in that open source means public domain, and suddenly Linux is on everyone's desktop, but, it's closed source!
Good (Score:4, Insightful)
It's always invigorating to read twitter flamebait in the morning, but I doubt anyone can make a case that Microsoft (or, before CmdrTaco's edits, "M$") is a patent troll, or that it uses patents offensively. Even that FUD about Linux infringing 200+ patents is nothing more than hot air.
If anything, Microsoft has been a large target for patent trolls, and they have been rather successful at it IIRC. I think it's amusing to see people like our notorious troll here obsess with Microsoft's patent portfolio when there are smaller and more dangerous fish to fry in this delightful niche.
Someone might want to call IBM and let them know about this though. And Google. If Microsoft's patent portfolio is "worthless" then so is everybody else's. Which is a good thing, don't get me wrong, but I think it will be a while before courts start punishing actual patent trolls.
Re:Good (Score:5, Insightful)
If it's backed, however tepidly, by an army of Microsoft lawyers, does it still count as hot air?
Granted, Microsoft's stance is far removed from the sniping virulence of the average patent troll. Still, a troll's a troll, even if it's the lame level 5 in the dungeon entryway.
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Re:Good (Score:5, Insightful)
Patents are like nuclear weapons. The big boy have the majority of them, but there's a tacit agreement (ala Mutually Assured Destruction of the Cold War) that they are for deterrent purposes only. The third-world Chihuahua dogs of the patent scene like Eolas are using their limited arsenal as they can to wrest some cash from the big boys. Sometimes that works, and sometimes it doesn't.
What we all need is complete disarmament, so the big boys can't bluster about theirs and the little yapping dogs can't use theirs either. Everybody wins.
Fresh off the wire: Apple sued over iPhone web browsing [msn.com], by another little patent troll. Reform is needed to stop this. I think companies like Microsoft, IBM, Google and Apple would be more than happy to stop pursuing defensive patents if the IP laws in the US and elsewhere ensured that they are not going to get nailed by the yapping dogs.
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Re: (Score:3, Insightful)
He, this article is flamebait (PJ said something completely different, but the poster probably didn't RTFA), but that doesn't makes your comment less so. Microsof can't really sue FOSS for patent enforcement, but that doesn't make their actions less damaging. Also, most people don't care about trolls that go after big companies because, well, they don't administer big companies themselves. Most people care about people, and small companies, so they care about big companies that go out of their way to put sm
This is good news! (Score:4, Insightful)
It is great that software patents are finally being examined and reformed. Software patents are incredibly stupid as they can be incredibly broad and are for the sole purpose of stifling innovation. Instead of keeping large corporations from stealing and others inventions and making the inventors effort worthless, software patents do the opposite and allow large corporations from patenting broad techniques that almost always have prior art and leeching off other large corporations or hurting the American Consumer by stifling innovation and creating monopolies.
Patents in themselves and Intellectual Property are good at times but when it comes to software patents, all they do is cause abuse. For example many of our largest corporations have had a lot of their money stolen by patent trolls.
Patent law needs to be reformed and the Government needs to something about how large corporations are taking advantage of their resources to prove that they have the right to do techniques such as "webpages", "structured documents", or "contextual advertisements". Such broad things like that really shouldn't be reserved by anyone.
Patents are useful and are necessary in order to reward people and companies for spending R&D money to fund a lab or years of research. But software patents are basically a race for the first patent troll to type up an idea and spend the money to patent it. They don't have any benefit to anyone and they don't encourage anything except for companies to bully others and to squash competition.
Bilski wasn't about software patents (Score:5, Informative)
Bilski was about business method patents not tied to any machine. The Federal Circuit tried to make this clear in the In re Bilski opinion [uscourts.gov] itself (page 21):
It is true that the validity of many broadly drafted claims may be at issue, but many software claims just do not make sense unless the claims are understood to be tied to computational devices. For example, Beauregard claims, which are claims on a computer readable media adapted to implement a method or system, are considered patentable [patentlyo.com] by the PTO. These kind of claims are very popular because they allow patent holders to go after the software distributors rather than end-users.
It will be harder to enforce software patents, now that the defense lawyers can wield Sec. 101 with more power. But it is a mistake to declare victory against software patents based on a case where all the PTO wanted was for the patent applicant to add "computer implemented" to the claim language.
Re:Bilski wasn't about software patents (Score:5, Informative)
You nailed it (are you a lawyer? Who else reads Patently-O?). I like PJ. I really do. But this is a case where she just heard what she wanted to hear in the opinion, found somebody who agrees with her, and has run with it ever since. As you pointed out, the PTO has upheld Beuregard claims since Bilski issued. That is a trivially-easy way of turning a software claim into a device claim. Honestly, I wondered about the viability of most software claims after Bilski issued, but now that we've gotten a clear signal that Beauregard claims are still good, it would be malpractice not to write software claims for your clients.
So no, Microsoft's patent portfolio is not dead. If they have patents that they think are in danger after Bilski, they can go into reissue and either do Beauregard claims (if they don't have them) or tie them to a particular machine. They can do this even on old patents, because they will be asking for narrowing amendments. In any case, Microsoft's patent portfolio is largely about volume. Each patent stands on its own. It's not "dead" until each and every one of those patents is individually attacked and killed, which is unlikely to happen for two reasons. One, litigation is expensive. Two, some (maybe even most) of them are going to survive in some manner or another (or in other words, if you throw enough spaghetti against the wall, something will stick).
Cue the onslaught of basement-dwelling armchair lawyers who come out of the woodwork to "correct" me any time I say anything about IP law on Slashdot.
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Sigh... it's Groklaw... (Score:4, Insightful)
Is there some reporting and analysis of this matter from a more impartial source than Groklaw? I'd love to believe what PJ writes, but the history of software patents is one of cleverly worded applications exploiting and widening every possible loophole to expand the scope of patentability. I think Groklaw is putting a very optimistic spin on this.
Re:Sigh... it's Groklaw... (Score:4, Interesting)
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Re: (Score:3, Insightful)
If we were all lawyers, our opinions might even matter!
He's looking for a lawyer's opinion on this... Preferably one with less bias than Groklaw has.
Re:Sigh... it's Groklaw... (Score:4, Interesting)
I don't think Groklaw is being overly optimistic, I think the summary is.
PJ essentially said that this further erodes software patents and that it may well invalidate one particular type of software patent. A type that Microsoft apparently has a great deal of because they filed a brief saying that ruling the wrong way on this would hurt them.
PJ did not say that all Microsoft patent are belong to us or all software patent are belong to us. The article is implying that far more strongly than PJ.
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So, who wants to go first? (Score:5, Interesting)
its not all bad news for MS... (Score:3, Interesting)
A ruling came down from the board of patent appeals and interferences (BPAI) allowing Beauregard claims. a Beauregard claim is a claim for the steps of a method stored on a "computer-readable medium." The FedCirc could rule that the BPAI is wrong on appeal, but for the time being the PTO will still be allowing software claims using the computer readable medium language.
Practical effect: any patent using that language will still be enforceable. Since you can't violate a software patent without storing it somewhere, there is no downside to including that language in the claims.
Anything can be turned into a "machine" (Score:3)
Algorithms are not patentable in many countries. So what people do to patent them is they say that they apply for a patent on a "computer system running the algorithm described". Which is a reasonable thing to do since it's pretty hard to run algorithms on a sheet of paper these days.
If the only hammer you have is a tool... (Score:5, Interesting)
The counter attack there being the "not obvious" leg of patentablity. Using a tool for it's intended purpose is considered obvious, and therefore not patentable. Since running algorithms is what computers do, by definition, it's a short step to an "obvious, therefore not patentable" attack.
Basically, the argument is if you have a nail that isn't patentable and a hammer that was specifically designed to hit nails with then hitting the nail with the hammer is obvious and not patentable.
--MarkusQ
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Re:If the only hammer you have is a tool... (Score:4, Interesting)
The problem is that you could trivially extend this line of reasoning to any patent or machinery. Patents are not about using something contrary to its nature, indeed that would be nonsensical, but about significant new configurations of something that exploit its nature. After all, mechanical devices are based on nothing more than exploiting the obvious "gear-like" nature of gears, "lever-like" nature of levers, and so one. Just like an algorithm exploits the obvious "bit-manipulation-like" nature of computers.
Of course, this is skirting around the basic fact that makes these types of arguments stupid to begin with: All Patents Are Algorithms. I thought this was a site for computer nerds, which presumably suggests some familiarity with computational information theory. That is the elephant in the room that everyone is trying really hard not to notice, which suggests more of an emotional than rational reaction to the topic.
A big part of the existing problem is that the definitions are neither rigorous nor consistent, so intentionally pretending that a difference exists where none theoretically does is just license for gaming and shenanigans, never mind unintended consequences. I have yet to hear a single explanation of why an algorithm implemented with molecules (e.g. chemical process patent) is peachy goodness while an algorithm implemented with bits (e.g. software process patent) is Teh Evil. Every single argument -- every single one -- against algorithm patents apply to chemical process patents, but in practice no one ever makes that case against chemical process patents, which at a minimum raises a lot of questions about the integrity of the position.
And I am not even necessarily a proponent of patents per se, just a proponent of consistent and rigorous treatment that acknowledges some semblance of reality. Otherwise, the same people will be whining a few years later when the next set of gross discrepancies are exploited. Picking and choosing which parts of reality we like and pretending the rest do not exist is part of what created the current mess in the first place, so I see no reason to continue that exercise. Maybe patents are good, maybe patents are bad, but let's not focus the discussion on politically convenient distinctions that do not meaningfully exist.
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Re:If the only hammer you have is a tool... (Score:5, Funny)
Basically, the argument is if you have a nail that isn't patentable and a hammer that was specifically designed to hit nails with then hitting the nail with the hammer is obvious and not patentable
OTOH, patent lawyers' heads are also not patentable, but hitting them with a hammer is not obvious, and might in fact be patentable.
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Re: (Score:3, Interesting)
No. The decision affects business method patents, not software patents. Software patents will probably get a direct challeng at some point, but that point is not today.
Re:What I really want to know (Score:4, Interesting)
The decision directly affects business method patents but also overrides a standard used to test the validity of process patents and that standard has been used as the basis of a great deal of software patents. Apparently, including a large portion of Microsoft's portfolio.
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