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Microsoft's Marshall Phelps On Patents And Linux 282

Posted by timothy
from the cross-purposes dept.
An anonymous reader writes "Microsoft's Marshall Phelps says he is running 'a licensing shop, not a litigation shop.' Bill Gates's intellectual property guru talks to Brad Stone about Redmond's new emphasis on patents, why he can't license Microsoft IP to distributors of open source software -- and why he shouldn't be feared."
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Microsoft's Marshall Phelps On Patents And Linux

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  • Let's See (Score:5, Insightful)

    by ravenspear (756059) on Tuesday August 03, 2004 @03:37AM (#9867394)
    why he can't license Microsoft IP to distributors of open source software

    Maybe because he doesn't need to, or no one else feels they need it to legitimize themselves. A great deal of Microsoft's so-called IP has numerous examples of prior art in both open and closed source products.
    • Re:Let's See (Score:5, Insightful)

      by gbjbaanb (229885) on Tuesday August 03, 2004 @04:59AM (#9867623)
      I think it has nothing to do with Open source, but with the GPL.

      MS says 'if you want to use this patent, you have to get a licence'. The GPL says 'once its in, its licenced under the GPL and you can give it away'. A little simplistic explanation there, but I hope you get the idea.

      The argument against patenting doesn't make much difference though, even if the majority of MS patents are shown to be spurious, they will still have some good ones that will be effectual.
      Personally, I would like to see crappy patents kicked out, then everyone would know where they stand with the real patents that are worthy the system. (and that applies to all patent-owning companies, not just Microsoft, and especially those that do nothing but patent crap.)

      • by msobkow (48369) on Tuesday August 03, 2004 @06:18AM (#9867796) Homepage Journal

        The patent holder can license their implementation however they choose. It is perfectly legal to expressly say that your code may be used by GPL applications as a shared library, the same way that LGPL code can be used by commercial source.

        Otherwise you'd best get rid of the NVidia drivers, the commercial databases, and every other non-GPL product that runs on Linux. That's not the intent of the GPL, never was, and it's nothing but Microsoft FUD bolstered by uncertain IP laws which suggests otherwise.

        The GPL is about ensuring that if you use GPL code for your work then it must be licensed under the GPL, not that the GPL can't use any libaries which aren't expressly GPL'd. Contrary to any fantasies the full-bore GPL zealot might have, there is no legal way you could do that, and it would be against the very spirit of freedom that led to the creation of the GPL.

        Also note they are not talking about refusing to license the IP for specific projects, but to the distributor of the source. In other words, they've decided to play their patent portfolio as a market-blocking threat the same way they yanked all the incentives from hardware manufacturers who dared ship something other than Windows.

        As far as I'm concerned, Microsoft has just expressly stated their intent to maintain monopoly profits and control through IP barratry and by locking out any company which dares support or distribute GPL software.

        If that's not a RICO violation, I don't know what is, and it's well past the time we stopped putting up with this crap as an industry. I greatly look forward to Sun, IBM, and every other IP holder banding together and teaching Bill that he does not rule the world, no matter how much he'd like to.

        • by Mournblade (72705) on Tuesday August 03, 2004 @09:50AM (#9868475) Homepage
          "I greatly look forward to Sun, IBM, and every other IP holder banding together and teaching Bill that he does not rule the world, no matter how much he'd like to.

          Don't hold your breath waiting for Sun to join that fight. They executed a patent cross-license deal with MS about a month or so ago. Sun agreed to drop a lawsuit they had filed, and MS gave Sun aboot $2B.
          Patents were intended to promote innovation. Unfortunately, they are more and more frequently being used to stifle innovation instead.

          • Patents were intended to promote innovation. Unfortunately, they are more and more frequently being used to stifle innovation instead.

            I really wish people would actually think about the meanings of these words before spouting them like they're legitimate words of wisdom.

            Patents, by design, stifle competition. They are supposed to stifle competition. Look it up in the Constitution of the US.

            If somebody has a patent for a software concept, that means that they've apparently already made that "innovation

        • That has me wondering: could an open-source outfit start patenting ideas? Could we have GPL-friendly patents?

          I know that sounds crazy... but sometimes you have to use a system to make it break, or just defend yourself before it crumbles.

          I would consider patenting and licensing to anyone that follows the GPL. If a competitor comes knocking, I have patents to defend myself. Heck, imagine a hundred FL/OSS companies with GPL-patents all counter-attacking any commercial company stupid enough to attack any of i
          • There's more than a few problems with the plan.

            (1) A handful of patents isn't likely to do it, the opponent isn't likely to infringe any of them. You need a shotgun.minefeild approach, you need to spend millions on countless patents to be sure they trip over one.

            (2) To attempt to enforce a patent in court starts at a half million, and can rapidly rise to several million. It doesn't matter how many of "our" patents they infringe if we can't afford to bring them to court over it. And don't forget that if we
    • "A great deal of Microsoft's so-called IP has numerous examples of prior art in both open and closed source products. "

      Some maybe. But you only see a few hot-headed ones on Slashdot. This is not an argument against what you said. Instead, I am merely pointing out that you should be careful about shaping your opinion on MS's 3,000 or so patents based on a few Slashdot stories.

      Maybe I'm not giving you enough credit. (I am making an assumption here...) For that I apologize. However, I imagine there are
  • by metalac (633801) on Tuesday August 03, 2004 @03:38AM (#9867399)
    So what exactly do they do with these software patents? what about prior art??? doesn't that apply to software patents? Also could I just like license a certain type of for loop or something and charge for it? It seems to me that this is all just bunch of corporate crap talk that will eventually not get anywhere and you'll only be able to get the patents on something trully revolutionary and quite unique.
  • by ruprechtjones (545762) <ruprechtjones@gm ... m minus caffeine> on Tuesday August 03, 2004 @03:40AM (#9867405) Homepage
    Well, all I can say, for good or bad, is that litigation will work things out. Unfortunately, GPL will be more defined through the courts, when the fat-cat lawyers argue it out. It will only become one of the big boys when things are sorted out in court. I hate fawking lawyers, but they seem to define business plans these days, so let's rock.

    • It seems to me the proper way to battle this patent nonsense is for a large entity favorable to OSS to step forward and begin funding 3000 patents a year.

      Then when Microsoft (or SCO, or someone else) cries about OSS, there's another organization on the other side of the courtroom holding some cards.

      How about it, EFF! Start a patent and licensing division! QUICK! (EFF, or one of the Open Source Groups... someone do it, pleeeeeeease!)

      • by bfree (113420) on Tuesday August 03, 2004 @09:00AM (#9868212)

        I'm always tempted by this argument, but it has one massive flaw, it endorses their system! I would much rather contribute to paying the EFF to employ staff at the patent office who try to act as unofficial assistants to the patent examiners and provide them with prior art or arguments towards obviousness to patents as quickly as possible. The second half of this is to try and bust as many existing patents as possible cheaply by getting the Patent Office to revoke them ...

        My scepticism would be in the willingness of the Patent Office to co-operate, but perhaps if the presented materials were available for anyone who is then attacked by a patent which is granted and if those materials have a history in court of proving sufficient, the courts may even start putting pressure on the Patent Office to pay attention to this stuff and stop wasting the courts time (could the EFF sue the Patent Office for not revoking patents in the face of clear evidence?).

        • Isn't there an argument to be made that if a technique is implemented in Open Source software, then it is obvious?

          Doesn't an ordinary practitionar of the art coming up with a patented solution independent of the patent refute word-for-word the non-obvious requirement of a patent?

          If not, why not?
  • by rpbailey1642 (766298) <robert.b.pratt@[ ]il.com ['gma' in gap]> on Tuesday August 03, 2004 @03:40AM (#9867408)
    Call me crazy, but I actually think this guy is telling the truth about not tackling open source on patent violations. Microsoft has gotten to the point that it may be wearing the crown, but no one likes the king. If Microsoft was going to pull some patent-issue on free software, it would generate a lot of poor publicity for Microsoft, which they do not want. Microsoft isn't a tech company, it is a marketing company that happens to make software. Microsoft doesn't want its main product, its image, to be injured. Just my opinionated two cents.
    • by Metallic Matty (579124) on Tuesday August 03, 2004 @03:51AM (#9867444)
      I don't disagree. But I believe its mostly meaningless either way. Microsoft has already received quite a bit of bad PR with its anti-trust problems. Something tells me this hasn't caused the masses to run out and pick up a copy of Fedora Core.

      I don't think they'll be losing much ground with standard Joe Consumer any day soon. Even if people do hear about how MS is or isn't bad, it doesn't effect their choice. People are brought up on MS, and companies like Dell and Gateway forcefeed it to their customers.

      (I am aware this is only one portion of the market, I am not talking about corporate use.)
    • by Armchair Dissident (557503) on Tuesday August 03, 2004 @03:54AM (#9867456) Homepage
      I don't buy that. If Microsoft refuse to go after Open Source shops for patent licenses, then they will not be able to license their software, period. If they go to a company a and say, "you're infringing our patent, would you mind paying us $x", then company a can point to the Open Source infringer and say, "well, they're not paying anything so is your license really worth anything?".

      The last thing Microsoft is going to do is make it look like it's supporting Open Source software. If they try to get closed-source companies to pay licensing fees, but don't go after open source shops, then they're seen to be supporting open source. It's not going to happen.
      • You make a really good point, especially as it would put Microsoft in a very bad position. As soon as they say something like "They are different. You have to pay 'X' and they don't", they will wind up in a whole heap of trouble. In short, I really haven't a crystal ball as to what will happen, other than I know that MS will, no matter what, put publicity first. Be it "Why should we care what those wacky Open Source people do? Longhorn does all that and more. They are imitating us" or some other bold-face l
        • "They are different. You have to pay 'X' and they don't",

          Not necessarily. Non-discriminatory licensing is not actually required. I can license my patent to MS for $10 per copy, and to Linux for free, and to my little brother for $1000, if that floats my boat. If I had a patent.

          Not that I am trying to imply that MS will do "the Right Thing" (whatever that is) with its patent arsenal.

      • by ScouseMouse (690083) on Tuesday August 03, 2004 @04:24AM (#9867537) Homepage
        That sort of thing only applies in trademark law. As far as patents (Software or otherwise) apply, they can be as damn selective as they feel like so the conversation would be more like:

        "you're infringing our patent, would you mind paying us $x",
        then if the company a can point to the Open Source infringer and say
        "well, they're not paying anything so is your license really worth anything?".
        the response would be along the lines of
        So?

        Most large patent holders dont want to rock the boat too much in case they give the anti-sw-patent lobby too much ammunition. Software patents are a goldmine for large companies. If patent battles start descending into lots of legal wars, Congress will have to take action, even if the Senetor's Corparate owners dont want it.

        Besides, Microsoft have already managed to dodge anti-trust issues in the US, I suspect they will wait a few years before they judge it safe to try to kill a competitor in such an obvious manner again.
        • by Armchair Dissident (557503) on Tuesday August 03, 2004 @04:58AM (#9867620) Homepage
          Re-reading the article, this little snippet got me thinking:

          "somebody who is taking software pursuant to the GPL cannot take a license ... Section 7 [of the GPL] is its own world."

          I wonder if it's actually much simpler, the conversation may well go something like:

          MS: "You're infringing our patent, pay us $x"
          Company A: "But they're infringing too, and they're not paying?"
          MS: "I know. But we've required them to pay a redistribution fee in order to redistribute the patented code. Under section 7 of the GPL they're not permitted to do that {evil laugh}".

          If Microsoft are going to start licensing their patents, then the last thing they are going to want to do is be seen to support open source. Instead they're more likely to try to stop "infringing" GPL'd software in it's tracks by requiring a licensing fee for redistribution. No lawyers necessary unless someone coughs up to challenge the patent in court.

          Of course I could just be paranoid ;)

      • by crucini (98210)
        "well, they're not paying anything so is your license really worth anything?"

        The obvious answer is, "They don't have any money; you do.". Look at Fraunhoffer, LAME and MP3.
    • by kfg (145172) on Tuesday August 03, 2004 @04:00AM (#9867476)
      If Microsoft was going to pull some patent-issue on free software. . .

      it would pay SCO to do it for them.

      KFG
    • by houghi (78078) on Tuesday August 03, 2004 @04:37AM (#9867564)
      Microsoft has gotten to the point that it may be wearing the crown, but no one likes the king.

      I would not compare them to a King, I would compare them to a dictator, or at least a wannabe dictator. With King we now think about people who shake hands and nothing much else. Their only job now is to be liked, instead of protect their land (not the people) of thievery by stealing some more themselves. Otherwise it looks good:
      King Microsoft against the Linux autonomous collective.
      I am Bill Gates, King of the programmers
      - Who are the programmers?
      We all are. We are all programmers. And I am your king.
      - I didn't know we had a king. I thought we were a Linux autonomous collective.

      it would generate a lot of poor publicity for Microsoft [...] Microsoft doesn't want its main product, its image, to be injured.

      You actualy believe they are having a GOOD product immage? Thanks to them everybody takes computercrashes for granted. BECAUSE they are a marketing company will allow them to attack the world, its users, the governement and everybody else and STILL come out a a nice and feel good company.

      Say that if they went ahead and lost gullibilaty and gained 50% on Linux (or anything else Open Source) they will twist it around and say that they were just a law abiding company who showed the thiefes of Linux the righteous way.

      If they loose, they will play the underdog how they were betrayed by the law.

      As was said earlier, they are not especialy attacking open source, they attack everything that is not Microsoft.
      • King Microsoft against the Linux autonomous collective. I am Bill Gates, King of the programmers - Who are the programmers? We all are. We are all programmers. And I am your king. - I didn't know we had a king. I thought we were a Linux autonomous collective. I was thinking they can't be a King because they don't pass this test:

        Who is this Microsoft company anyway?
        Must be a King.
        Why's that?
        It doesn't have shit all over it.

        See, that doesn't seem right. Microsoft is knee deep in its own shit.

      • by badriram (699489) on Tuesday August 03, 2004 @10:42AM (#9868758)
        You need to take a history class... There have been kings that have absolutely hated by people, and there have been dictators loved by their people.
        But either way.... they do get to act like rulers of the PC world, because they are.
    • Oh ya...
      because "Linux is illegally using patented MS technology" would not be a good marketing scheme one day?
    • this wouldn't be the first case of a company holding a patent and choosing not to enforce it, or at least being nice to the small guys. ever used backing store on your windowing system? before about two years ago? then that's (nominally) a patent violation - the patent, held by Bell Labs, ended about two years ago. they essentially looked the other way, realizing how fundamental it was.

      but then, we're talking about microsoft here...
    • as long as linux developers/vendors begin paying the proper licensing fees for all MS "inventions" contained in linux, there will be no reason to litigate.

      remember, they're licensors, not litigators...although they do seem to have SCO on retainer for that latter sort of nasty work.
  • by DrJimbo (594231) * on Tuesday August 03, 2004 @03:44AM (#9867417)
    Marshall Phelps says he is running 'a licensing shop, not a litigation shop.'

    That's because they've outsourced their litigation to The SCO Group.

  • by nz_mincemeat (192600) on Tuesday August 03, 2004 @03:47AM (#9867426) Homepage
    Once the patents are sucessfully filed, the onus would be on to the challenger(s) to prove there is prior art. A patent holder with as much cash as Microsoft obviously has the fiscal endurance to survive many bouts of litigation...

    As the core business of MS is slowly but surely shrinking they are just diversifying to other avenues of income.

    Overall this sounds like a virtual version of a typical real estate land grab - buy all the "land" (in this case "ways to do things") then anybody who wants to "build" something with it will need to pay their "rent" or "buy" the right to use the land.

    • by homb (82455) on Tuesday August 03, 2004 @03:53AM (#9867452)
      As the core business of MS is slowly but surely shrinking they are just diversifying to other avenues of income.
      Not exactly correct. The core business of MS is slowing its growth, not shrinking. It's a small difference, but quite significant.

      When you have the whole market, you can only grow at the growth rate of the market. Microsoft investors and Wall Street are asking MS to look for new avenues of growth, and patent licensing is one of them (XBox is another).

      It's extremely hard for MS to find any new areas that can get significant enough to impact their bottom line.

      So expect a lot of litigation, or at least behind-the-scenes dealmaking.

    • Maybe someone can explain something to me. If all you have to do is prove prior art, why would a patent case last more then a few hours in front of a judge?

      "Here is the patent judge. Here is the prior art. According to the patent, this was done [insert date here]. This prior art was done [insert earlier date here]."

      It seems simple to me. Why is it so hard in real life?
      • Maybe someone can explain something to me. If all you have to do is prove prior art, why would a patent case last more then a few hours in front of a judge?

        It takes even a good lawyer years just to understand what the patent actually says. Combining legalese with technobabble is an excellent way of generating truly incomprehensible (and therefore useless) documents. "Patently obvious" long ago became an oxymoron.

    • Once the patents are sucessfully filed, the onus would be on to the challenger(s) to prove there is prior art.

      So it's easy enough to file a patent, relatively cheap, and half of them have a good strategic and financial payback.

      And what's in it for the challenger? It seems everytime a patent needs to be challenged, we're back to a bake sale mentality with small fundraisers. I'd like to see some penalties when people or corporations file frivolous patents, and see them paid to challengers. How's a million do

  • by Kickasso (210195) on Tuesday August 03, 2004 @03:52AM (#9867447)
    FOSS afficionados should organise themselves one of these days and switch off all "infringing" software on the Internet for 48 hours. Just flip the switch and wait. I somehow suspect that the matter will suddenly become much more negotiable.
    • by NeuralAbyss (12335) on Tuesday August 03, 2004 @03:57AM (#9867467) Homepage
      And herein lies the problem with dealing with business - they'll look at the cost of living without FOSS, and compare it with the cost of purchasing software produced by licensees of the patent holders. It's nothing personal, "just business". FOSS is harmed by software patents - that cannot be denied. But the same argument cannot be held to business - they'll just treat it as a cost of operating, and subsequently pay, (illegally) avoid paying, or go out of business. Welcome to The System.

      Disclaimer: I am not a proponent of software patents, just a realist.
      • I know the grandparent's post isn't really a viable option, but among the OSS components that would be shut off is the BSD TCP stack, which happens to be not just in Linux, but Windows, and most likely 99% of all computer systems on the continent.

        If you think a business with dozen Apache servers would not balk at paying for IIS, WinXX Server, etc a dozen times over, you really haven't had much dealings with real management.

        The flip side of the business profit coin is not spending money. Once a cheaper

    • Supposing if over my cold dead hands that actually happened, you'd assume MS would cop some bad publicity. Wrong.

      They'd just reframe the situation as a business opportunity for the IT folk. Now they could make lots of money doing the work of installing "some other operating system". It would be just like the malarky the Y2K panic was....
    • I doubt it. Businesses everywhere would say "Fuck you, you goddamned smelly hippy bitches. Fuck you and your stupid fucking crybaby pussy-ass games. Fuck your stupid software, fuck your lameass social retard ideals, and fuck your mom. Someone get MS on the phone. Last I checked they didn't pull the plug on their customers to prove a lame fucking point. Fuck OSS and the stupid fucking Commies that run it. In the ear. With some corn."

      Or something like that. I dunno.
    • Umm... how do you just switch off all the software? It's not like it's your hardware that it's running on. You no longer own your free software that you gave away, and while you can just go home, it's too late to take your ball with you. It's theirs, you gave it to them, you can't just take it away because you want to sulk for a couple days. Isn't that sort of crap what people always fear Microsoft will do?

      On top of that, it doesn't seem very professional. If I were MS, I'd wait for people to do somet
      • It wouldn't be so much turning off the software, so much as the people who run the software going on strike.

        On top of that, it doesn't seem very professional. If I were MS, I'd wait for people to do something so childish and then say, "See, what's keeping the people supplying your free software from acting like a bunch of spoiled children every time they think they're not getting their way?"

        Well, ANY set opf workers can go on strike, OSS or MS. At least the OSS workers never sick the BSA on you if you

  • by latroM (652152) on Tuesday August 03, 2004 @03:56AM (#9867463) Homepage Journal
    from http://www.gnu.org/philosophy/words-to-avoid.html# IntellectualProperty

    Publishers and lawyers like to describe copyright as ``intellectual property''---a term that also includes patents, trademarks, and other more obscure areas of law. These laws have so little in common, and differ so much, that it is ill-advised to generalize about them. It is best to talk specifically about ``copyright,'' or about ``patents,'' or about ``trademarks.''

    The term ``intellectual property'' carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

    When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)

    If you don't want to limit yourself to this way of thinking, it is best to avoid using the term ``intellectual property'' in your words and thoughts.

    ``Intellectual property'' is also an unwise generalization. The term is a catch-all that lumps together several disparate legal systems, including copyright, patents, trademarks, and others, which have very little in common. These systems of law originated separately, cover different activities, operate in different ways, and raise different public policy issues. If you learn a fact about copyright law, you would do well to assume it does not apply to patent law, since that is almost always so.

    Since these laws are so different, the term ``intellectual property'' is an invitation to simplistic thinking. It leads people to focus on the meager common aspect of these disparate laws, which is that they establish monopolies that can be bought and sold, and ignore their substance--the different restrictions they place on the public and the different consequences that result. At that broad level, you can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. Thus, any opinion about ``intellectual property'' is almost surely foolish.

    If you want to think clearly about the issues raised by patents, copyrights and trademarks, or even learn what these laws require, the first step is to forget that you ever heard the term ``intellectual property'' and treat them as unrelated subjects. To give clear information and encourage clear thinking, never speak or write about ``intellectual property''; instead, present the topic as copyright, patents, or whichever specific law you are discussing.

    According to Professor Mark Lemley of the University of Texas Law School, the widespread use of term "intellectual property" is a recent fad, arising from the 1967 founding of the World Intellectual Property Organization. (See footnote 123 in his March 1997 book review, in the Texas Law Review, of Romantic Authorship and the Rhetoric of Property by James Boyle.) WIPO represents the interests of the holders of copyrights, patents and trademarks, and lobbies governments to increase their power. One WIPO treaty follows the lines of the Digital Millennium Copyright Act, which has been used to censor useful free software packages in the US.
    • Maybe it'd be better to refer to IP as "Intellectual Patterns" rather than Property?
  • by acidrain (35064) on Tuesday August 03, 2004 @03:59AM (#9867474)

    From the article: The overtaxed U.S. Patent and Trademark Office often grants absurdly broad patents that reflect little actual innovation. (For example, Microsoft owns a patent for activating a program on a handheld device by holding a button down for several seconds).

    Is it just me, or is someone at MSNBC got a hate on for Microsoft? First the reccomend Mozilla and now they slam them for patents. I am guessing there is some behind the scene tension there.

  • by akaiONE (467100) on Tuesday August 03, 2004 @04:01AM (#9867481) Homepage Journal
    The article says:
    "Marshall Phelps tries to dispel the notion that Microsoft is preparing a patent assault on open-source software. He notes that at IBM he never initiated a single lawsuit"

    Will this mean that the 27 seven unidentified patents that Open Source Risk Management [osriskmanagement.com] have found can just remain then? Maybe not. If those 27 patents are identified under a contract of no disclosure to key kernel developers, will the community be able to implement workarounds before the suits starts to rain?

    I would be very interested in knowing who else owns a patent that yet have not been tested in court that covers code in the Linux 2.4 and 2.6 kernel-series. Without knowing if they have been tested in court or not we will just have to stick with the numbers made public then: IBM has 60 patents, Microsoft has the 27, 20 has HP and 11 goes to Intel. That leaves us with just above 160 other unidentified patents to deal with.

    Microsofts 27 patents are most likely the worst here, but have they been tested in court? Things like their silly patent for "activating a program on a handheld device by holding a button down for several seconds" will most likely not pass any court, or I for sure hope not.

    I think that the SCO-case will set a precedence so that other stupid claims are thrown out without years of countersuits and motions in all directions. Lets atleast pray it does. I will.
    • Uh-oh, I bet you guys are going to have some serious rethinking to do in that critical launch-an-app-by-holding-down-some-silly-button kernel module, then. Seriously, though. This patent was dragged out as an example of something incredibly broad from the Microsoft portfolio, not as a decent cross-section of the 27 possible patents that affeect the kernel.
    • if they think they have a valid patent that Linux infringes on is put everyone on notice of that fact and give a reasonable deadline to have the offending code removed. This doesn't make MS look like a bad guy, after all they're being reasonable, and if the patent is really worthwhile, seriously inconvienence or disadvantage Linux which is really what MS wants.

      Again, this is based on the premise that MS (or anybody) has some valid patents. Unless you don't have anything at stake here, you really can't ig

  • Okay, all you'se guys that ain't afeered of Microsoft hold up yer hands!

    You? In the back? That's it?

    Okay, the hit's off! Time to open a lemonade stand in Philly.
  • new trend in IP (Score:5, Insightful)

    by Anonymous Coward on Tuesday August 03, 2004 @04:36AM (#9867560)
    Submarine patents are a nasty and relatively recent development in the intangible property arena. With the sloppiness of the USPTO, it benefits corporations to spend the relatively small amount of money to maintain a technology in the application process until favorable market trends develop (by filing continuations, etc.). Then, when the application is finally approved, the "inventor" receives priority status because our system, for better or for worse, favors the first to file.

    Once this occurs, said corporations can then leverage their patent portfolio (often referred to as offensive patent prosecution) to obtain compliance from those unwillingly infringing. Unlike trade secret law, or copyright, there is no innocent infringer or independent creation defense, so an infringer is faced with a situation where they are forced to pay lost profits and/or treble damages in addition to having their inventory siezed.

    Because a patent litigation suit averages about $3 million, only the hardiest of defendants can afford to challenge a patent's validity. Economically, it is often a better option to simply succumb to licensing fees. Herein lies the danger of our system. We hand out patents way too easily. Yet those with the only incentive to challenge the patents (and those with the only standing in court to attack the patent) often cannot afford to do so.

    Therefore, it is a situation where he who has the biggest patent portfolio generally wins. Although patent portfolios can play a very positive role in enhancing the overall value of a company, providing leverage for venture capital, etc., their core purpose is clear - dominance. The patent system no longer works to achieve its original goal - that of fostering innovation and dissemination of information to the public. Like copyright, it has been perverted by our capitalist nature, and needs to be reformed, or perhaps eliminated entirely.
    • NEW trend???

      as in gif is fresh kind of 'new'?

    • I seem to remember one of the problems with the US patent system is the issue of the US going with first to invent, not first to file. With first to invent, as long as you have some signed piece of paper (on US soil) showing you invented before the other person, you get the patent.

      With first to file, the first to file for a patent with the patent office gets the patent. It's simpler and it's what the rest of the world does.

      (No doubt I'll be corrected if I'm wrong...)

    • Re:new trend in IP (Score:2, Informative)

      by Anonymous Coward
      The uninformed rise on Slashdot to educate the masses. Again. I'm shocked.

      Submarine patents are a nasty and relatively recent development in the intangible property arena. With the sloppiness of the USPTO, it benefits corporations to spend the relatively small amount of money to maintain a technology in the application process until favorable market trends develop (by filing continuations, etc.).

      There's a guy named Lemelson who would be surprised to hear that submarine patents are a relatively recent
    • Re:new trend in IP (Score:3, Informative)

      by Bob9113 (14996)
      Submarine patents are a nasty and relatively recent development in the intangible property arena.

      My father is an engineer who has been involved in a number of patent applications going back to the 70's. He once mentioned that using non-industry-standard language is, and long has been, the common practice, because it increases the likelihood that competitors will not notice the patent and start infringing. Intentionally abusing the pitiful review process may be a recent development, but submarine patents
  • sigh. (Score:5, Interesting)

    by philovivero (321158) on Tuesday August 03, 2004 @04:39AM (#9867566) Homepage Journal
    When SCO was Caldera (or whatever the convoluted line of ownership) they were more or less non-evil. Then new owners came in and made it all evil.

    Microsoft, even granting the somewhat tenuous proposition that they're doing this for good, will soon be a different set of people. You know. Darl McBride junior and his buddies.

    So okay, Marshall, I'm sure you're a good guy and all, but I'm not giving you kudos for playing along with an evil, broken system "for good." I'd Microsoft spent its seven hundred godzillion dollars helping bring about reform in the patent system and changing its abuse-of-monopoly behaviours.

    No offense.
    • I've heard this cross-licensing song and dance before presented in a very self serving way. They present themselves as "enablers" without which big companies would not be able to make "complex" technical products. Of course, without absurd laws everyone would be able to make those complex things and there would be no need for cross licensing.

      The fact that Phelps is saying these things shows that he has his doubts. I have to wonder if the change from very specific pieces of cut and bent metal that works

  • by Hank Reardon (534417) on Tuesday August 03, 2004 @04:46AM (#9867581) Homepage Journal

    While reading the article, two phrases struck me: a research group is prepared to list 283 patents violated by Linux; and half of all patents are defeated in courts. (I believe the latter is half of all challenged patents.)

    Would it be difficult for an organization, say the EFF or the GNU foundation, to set up a specific fund for collecting donations to be used only to defend patent law suits?

    Imagine the war chest available if half of the Linux users donated $10 to this fund... And it'd be tax deductable in the States, too!

  • by BrynM (217883) * on Tuesday August 03, 2004 @04:52AM (#9867600) Homepage Journal
    After all this complaining (that I do too) about the patent office, it struck me that some companies involved in the current patent frenzy know the bottom is going to drop right out of it eventually. They're seeing a way to parlay quick cash and partnerships. The more ridiculous patents kind of remind me of the empty promises of many .com companies - but now many of these "innovators" have ridden that wave...
  • Prior art database (Score:5, Insightful)

    by dreez (609508) on Tuesday August 03, 2004 @05:42AM (#9867710)
    Wouldn't it be a good idea to create a 'open source prior art database' ? If you have a good idea for a program or a method of solving a problem you could enter it in the 'open source prior art database' so that it is registered and can't be used in a patent anymore. Also a list of existing prior art could be stored there. . . Grtz Drz
    • by niks42 (768188) on Tuesday August 03, 2004 @06:04AM (#9867757)
      Many companies (IBM for instance) have technical bulletin libraries for exactly this purpose; if they can't justify the cost of the patent process for a particular idea, then they publish the idea to record a date for prior art 'discussions'. Several of the ideas I had in development (in long past days) were published and not filed. I think its a good idea - but to be honest, it doesn't need to be a centralised database. Anything somewhere on the web that google can find would do for anyone searching for prior art. I think the real question is why the USPTO doesn't seem to think out of the box when determining if an invention passes the tests of being novel, or non-obvious for someone practiced in the field.
    • by killmenow (184444)
      I thought that's what CPAN [cpan.org] was.
  • by letalis (570718) on Tuesday August 03, 2004 @06:16AM (#9867792) Homepage
    In the article it states that: There have always been patent lawsuits, stretching back to the undocumented but likely stone-age fracas over the wheel. I feel this is some attempt to hammer into the conciousness of people that the patent system and the copyright is 'natural'. It isn't, the idea of it has not existed for more than at most a couple of hundred years, it is entirely a construction of the industrialization.
  • by StateOfTheUnion (762194) on Tuesday August 03, 2004 @06:34AM (#9867840) Homepage
    MS's going on a patent spree to mop up anything that their R&FD department might have left on the floor is really no surprise . . . it just adds to their already exapnsive war chest. Now not only can they use these patents as cross licensing material or use these to threaten to sue the little guy that doesn't play ball, but they also have something in their back pocket for the future . . .

    I don't think that MS will try to sue the open source community . . . where will the money come from? And they won't sue IBM, because IBM has a patent library that would put MS's to shame and the cost of such a war would make it a pyrric victory at best. But if anything bubbles out of the open source community to become a major software money maker (not a major services moneymaker like Linux has become, but software moneymaker like Netscape (that grew out of NCSA Mosaic) in its early days that attracted so much investment capital that MS became worried and went into a head to head war with Navigator vs. Inet. Explorer). I'm sure that if MS could, they would have launched a patent war against Netscape. And I'm sure that if they could, they would currently launch a patent war against Google. Next time there is a Netscape or a Google that threatens MS, they are going to have a collection of patents to throw at the competition.

  • by Rie Beam (632299)
    "There have always been patent lawsuits, stretching back to the undocumented but likely stone-age fracas over the wheel."

    "Ugg just invent wheel. Come see, Ogg."
    "Ugg do good. Can Ogg try?"
    "Ugg have patent on wheel. File proper papers and submit proper licensing fees."
    "But paper not invented yet, and Igg has patent on money!"
    "So? That Ogg problem, not mine..."
  • History Lesson Time (Score:5, Interesting)

    by ajs318 (655362) <sd_resp2&earthshod,co,uk> on Tuesday August 03, 2004 @08:43AM (#9868127)
    This is how the patent system was first envisaged as working. Say you're a penniless inventor. You're skint because you've just spent your life savings developing your latest widget which will change the world as we know it. The only one in the world is right there in your workshop.

    Now one way that you can make money out of your invention is to persuade a backer to lend you enough money so you can afford the tools and materials to start building it. But in order to do that, you need to convince your sponsor -- who is in all probability a banker or financier, not a scientist or an engineer -- that you can earn enough money by selling your invention to eventually pay them back, and that requires either an unparallelled degree of chutzpah or some kind of official document stating the worth of your invention. Another way is to get someone else to build your invention for you. But in order to do that, you will have to tell them how to make it -- and once they know that, they can cut you out of the loop. They have the invention, they can afford to make and sell it, why should you get anything?

    The patent system was set up to solve both these problems. You demonstrate your invention to a trustworthy body, and say that you are prepared to share it with the world at large; and in return, you are given a copy of an official letter which describes it in full and states that you are the true inventor. The original is held in a library where anyone can look at it. This letter also grants you, for a limited time, exclusive control over the commercial application of your idea. Now you can seek assistance, confident that you will be able to earn the true worth of your invention: a group of experts have attested to the fact that it really works (so nobody can think you are trying to rip them off with vapourware), and nobody else can claim it as their invention and rip you off. Then, after you have had a fair chance to get rich off your invention, it gets formally released so everyone can have a bite of the cherry -- which is your little way of saying "thank you" for all the inventions and discoveries which have come before and from which you have already benefitted; such as fire, tools, agriculture, sanitation, electricity, and so forth.

    If your invention is a piece of software, which is something which can be reproduced at no cost, then you are by definition not too poor to make it. But, additionally, some things should never be patentable. Mathematical processes, for one. What if integration were the subject of a patent claim? Integration is a mathematical concept that crops up time and time again in the real world. Would you have to pay a royalty every time you poured a liquid from one container into another? What if subtracting one were patented, and the patent holder refused absolutely to licence it? Would adding one and subtracting two be permitted as a work-around? Software is just a formalisation of a mathematical process.

    The most fundamental thing wrong with the US patent office today is that patent applications are not being properly tested. I believe firstly that the requirement to produce a working prototype should be reinstated. A patent application not supported by a prototype is nothing more than a work of science fiction -- and in any case, if you are not good enough to build a prototype, then perhaps you do not deserve to be recognised as an inventor. The question of licencing needs to be addressed -- I firmly believe in non-discriminatory licencing, in other words that a patent should be licenced to everybody, and everybody for the same price, or nobody. Additionally, a procedure needs to be created for verifying that an invention is original -- and for dealing with exceptions. Since this is an example of civil rather than criminal law, the terms "innocent" and "guilty" do not really apply, so the question of burden of proof is a thorny one. Finally, there need to be clear and unambiguous rules about what can and what cannot be patented; and, for the inevitable case of an invention which is so new that none of the existing rules can be applied to it, why.
    • I agree with most of your reccomendations, and would add another - patents and copyrights that become commercially unavailable are immediately released into the public domain. This would prevent a lot of "bad practices," such as submarine patents, books becoming unavailable after publishers go bankrupt, etc.

  • I really believe that the software giant is about to crumble in the next 10 years. The patent plan is their last gasp to maintain control of the industry. I really feel they will use this to try and stop Linux. And eventually, the courts will decide whether the United States will be a Microsoft run country or an open source country. Meanwhile the rest of the world will probably go open source. Either way, I think Microsofts best days are definitely behind them. Oh, I think they may win a few more batt
  • "Yeah, I admit it. We're going to bury Linux."

  • by Wolfier (94144) on Tuesday August 03, 2004 @09:40AM (#9868411)
    Worth noticing. They can just deny everything in the article. "The journalist made it up".
  • by multi io (640409) <olaf.klischat@googlemail.com> on Tuesday August 03, 2004 @03:12PM (#9870827)
    Microsoft's Marshall Phelps says he is running 'a licensing shop, not a litigation shop.'

    Running a "licensing shop" without threatening to sue people who use "licensed" technologies but refuse to acquire a license makes no sense.

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