Microsoft's Marshall Phelps On Patents And Linux 282
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."
Let's See (Score:5, Insightful)
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.
Seems on the level. (Score:5, Insightful)
licensing not a litigation ... (Score:5, Insightful)
That's because they've outsourced their litigation to The SCO Group.
Re:So can somebody explain me this? (Score:4, Insightful)
Re:So can somebody explain me this? (Score:5, Insightful)
Many business decisions are made this way. You call it extortion, lawyers call it The System.
That is logical from MS' point of view (Score:5, Insightful)
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.
Re:Seems on the level. (Score:5, Insightful)
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.
a hidden assumption (Score:5, Insightful)
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.
Re:Seems on the level. (Score:1, Insightful)
Focus on low cost volume licencing. After all, it worked for IBM and if there's one thing Wild Willy Gates does well, it's researching other people's ideas and copying them.
And co-incidentally, Marshall Phelps has been hired by Microsoft? Stinks like a plan to me.
Re:A great way to deal with the issue. (Score:5, Insightful)
Disclaimer: I am not a proponent of software patents, just a realist.
Re:Seems on the level. (Score:2, Insightful)
Re:That is logical from MS' point of view (Score:5, Insightful)
Which is when they will become truly sociopathic, and start to destroy stuff that benefits most of humanity, ie. open source and free software.
Microsoft's mandate as a corporation is to benefit its shareholders. Period. It does not exist to benefit humanity.
Expect it to hurt you if you stand in the way of its profits.
Re:MSNBC slammiing Microsoft (Score:1, Insightful)
Re:So can somebody explain me this? (Score:5, Insightful)
small developers will be stuck with no cards to trade, so dont try to use a for loop.
listen to some of stallmans lectures (particularly the one in england it sums this up nicely).
Re:MSNBC slammiing Microsoft (Score:5, Insightful)
new trend in IP (Score:5, Insightful)
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.
Re:Seems on the level. (Score:5, Insightful)
"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 ;)
Re:Let's See (Score:5, Insightful)
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.)
Prior art database (Score:5, Insightful)
Re:A great way to deal with the issue. (Score:2, Insightful)
Or something like that. I dunno.
Re:MSNBC slammiing Microsoft (Score:1, Insightful)
The reporters are not 'owned' by the fucking company, they are employed by them. MSNBC as an organization may be owned my MS, but journalistic integrity, despite what the Slashdot editors might think, is important in the real world. If MSNBC wants to be taken seriously as a news organization, they have to maintain that integrity. They are not a raa-raa MS site that exists soleley to give textual blowjobs to software leaders. Basically, it's the exact opposit of Slashdot.
Re:Patent Suit Defense Fund? (Score:1, Insightful)
Likely stone-age... (Score:5, Insightful)
Also note... (Score:1, Insightful)
You might also want to look again how many bullshit patents have been granted to Microsoft during the Bush term. My guess is you'll find most of the bullshit patents filed or approved during that period, adding to their wrist-slap penalty as evidence that Microsoft blatantly paid off the government to avoid breakup and to gain a patent portfolio large enough to crush competition.
Not by winning, but by simply dragging the court cases on long enough to bankrupt anyone who won't knuckle under.
Bloody thieves and frauds. They can't compete on quality or innovation, so they resort to barratry and payoffs like any other thug.
Patents . . . just another part of the War Chest (Score:3, Insightful)
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.
My 2 cents (Score:1, Insightful)
Blame WIPO and friends for the confusion (Score:2, Insightful)
The whole idea of "Intellectual Property" and putting all of these totally different things under one heading has led to this confusion.
We should get rid of that term COMPLETELY and go back to using copyrights, patents, trademarks, and trade secrets. Why lump them together?
Re:A great way to deal with the issue. (Score:2, Insightful)
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?"
Re:Why not the EFF - Electronic Frontier Foundatio (Score:4, Insightful)
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?).
Re:Seems on the level. (Score:1, Insightful)
So I'm pretty sure that MS will be true to their word when they promise not to use their patents to stifle FOSS, because there is no real benefit in them doing so. The FOSS community has after shown themselves to be a tenacious lot who do not take intimidation lying down - they will likely use every possible method to fight broad patents, and design their way around narrow ones, neither of which is a desirable turn of events for MS. And of course there's always the risk that the amount of noise and commotion which would inevitably be generated might end up getting software patents either outlawed or changed in ways that would invalidate a lot of Microsoft's portfolio...
The alternative is to just sit back and let the little fish do what they want, while dickering with big fish who live off them and also have a vested interest in ensuring that software patents stay as they are in the US, and proliferate elsewhere. That way, MS get royalties not only from their own software, but also everyone else's - we may even end up having to sign a MS EULA whenever we install a commercial Linux distro!
Re:Seems on the level. (Score:2, Insightful)
This lets Microsoft, IBM, and HP get along, but does nothing to protect them from the likes Eolas or Rambus, which don't actually make any products--so defensive patents are worthless.
Re:What did anyone expect Phelps to say? (Score:2, Insightful)
Re:Patents are not licenses (Score:3, Insightful)
(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 are "countersuing", then costs are doubled - we need around a million for the defensive case and around a million for the counter case, at the same time.
(3) Even if you do sue over a patent, well we only have a 50% chance of winning and a 50% chance of having our patent invalidated. That's the going rate on patent cases. Who's ready to sping for the millions of dollars involved, and to have a 50-50 chance of getting crushed any way?
(4) That still leaves use defenseless against the "pure IP holding company" attack. It's impossible to counter sue a copmany that has no product and therefore cannot infringe any patents. Microsoft would certainly not object to encouraging exactly that sort of proxy-attack.
I mean, if anyone wants to get a patent for this purpose, great, go for it! But don't expect it to amount to much. About the only time it's going to work is if some company like IBM takes up the battle, and any such company would already have a patent arsenal.
-
Re:That is logical from MS' point of view (Score:2, Insightful)
Re:That is logical from MS' point of view (Score:3, Insightful)
Whose TCP/IP stack was that? (Score:3, Insightful)
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 solution has been used that worked, any other vendor is automatically dragged down to that price.
Not to mention the side-effect costs of constantly having to restore the websites a few dozen times a day thanks to the script kiddies and high security IIS underpinnings.
Re:Also note... (Score:2, Insightful)
First, you stated that the evidence speaks for itself, yet you siad that there is no evidence, so how can the evidence speak for itself.
That said, there are *several* rational explanations for the results you spoke of: For example, it is possible that Microsoft has increased the number of patents that it is submitting, Microsoft has obtained more skilled attorneys to aid in its patent prosecution.
None of these rule out the possiblity that people have been paid off, but they are all rational explanations. I would argue that they are generally more rational than the explanation that someone was paid off and somehow that person was able to influence a plurality of patent examiners. All this while covering it so carefully that none of the Microsoft watchdogs were able to detect the scheme.
I'm not saying that Microsoft is altruistic and right, but using circumstantial events as evidence just doesn't convince me. Everyone is entitled to their opinion, but there are too many people willing to jump on the Microsoft is evil bandwagon.
licensing vs. litigation (Score:3, Insightful)
Running a "licensing shop" without threatening to sue people who use "licensed" technologies but refuse to acquire a license makes no sense.
hard to build a patent portfolio (Score:2, Insightful)
Frankly, I don't see any way out of the illegitmate and unreasonable "IP" patent mess now other than to keep showing what a complete farce it is. It is just too expensive to try and beat the big companies at their own game now,by accumulating "open source and free" patents, it's long past that time and isn't going to happen in any practical quantities. Relying on alleged "whitehat" corporations to always be the good guys is wishful thinking, not when push comes to shove, they will revert back to being complete predators.
The best bet is to simply embarass the patent office and congress to the point that we might get reasonable patent reform, including retroactive revocation of IP patents. It was a bad idea to go that route in the first place--just extrapolate it ten years from now, what sort of computer society will we have, how will you be able to do anything without having a full time personal IP lawyer?
IP patents are killing the goose that laid the golden egg, short term yee haww mega profits for some, long time dismal results for everyone else. It's already effecting business and coding, how is it supposed to get better with THOUSANDS more IP patents being granted yearly? Who the heck besides a handful of the biggest players will be able to keep up and compete then? The current patent system will lead to a global monopoly of half a dozen or so large companies controlling everything, and that's about it.
Re:Patents are not licenses (Score:3, Insightful)
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". If other people are doing something that predates that patent, they can take that patent to court and challenge the validity. If they are doing the same thing but the patent predates their operation, it is a classic case of the patent system working as intended by those dumb idiots who wrote the Constitution. Well, you know what I mean.
The issue of submarine patents was rather remarkably resolved by the Patent Cooperation Treaty. If you file a patent application, it will be publicly published within 18 months.
A patent only protects what the applicant can prove he has invented. ("Overly broad", though popular among Slashdot critics, is not a concept found in 35 U.S.C. or 37 CFR, the laws and rules governing the patent granting process, respectively.)
So seriously, how in hell can you "stifle innovation" with a patent? If it's a bad patent, then the "stifled" party can take it to court and prove so. If it's not a bad patent, then the "stifled" innovation is validly covered by the existing patent and the patent system worked as intended.
Anyhow, patents stifle innovation, Slashdot stifles intelligence, blowing hard stifles insight, we all pay taxes and die.