Microsoft Won't Assert Web Services Patents

Andy Updegrove writes, "Microsoft has just posted the text of a new promise not to assert its patents with respect to 35 listed Web Services standards. The promise is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema, with two important improvements intended to make it more clearly compatible with open source licensing. Those changes are to add an explicit promise not to assert any relevant patents against anyone in the distribution chain of a product, from the original vendor through to the end user; and to clarify that the promise covers a partial as well as a full implementation of a standard. It's all part of a recent wave of such pledges made by companies such as IBM, Nokia, and Oracle, and a significant shift in how Microsoft is dealing with open standards."

Lets be sure to praise em for doing good

Can't see any downside to them making such a pledge, so lets all be sure to be unreserved in our praise. Who knows, maybe we can encourage more of the same sort of behaviour. And not only just from Microsoft, lots of patents out there held by lots of companies, many of them potential mortal threat.

Yea Microsoft!

See, my tongue didn't burst into flames or anything. :)

Re:Lets be sure to praise em for doing good

The question of whether it raises an estoppel (presumably, here, a promissory estoppel) depends on, among other things, the degree to which the reliance by the unlicensed user of the patent on the pledge to not enforce the patent is "reasonable", as well as consideration of whether injustice can be avoided by any other means than enforcing the promise.

As a statement of the law this is spot on, but it would have been more helpful to the person asking the question if you had applied it to a sample set of facts.

Note the requirement for reliance - this means you must at least have been aware of the promise. You (or at a minimum somebody you claim through) must have then acted, in reliance on the promise, in such a way that you would suffer a detriment if Microsoft resiled from the promise.

If, being aware of the promise, you produce any non-trivial amount of work depending on the patents, chances are that a court is going to be willing to impose a promissory estoppel. In the case of GPL software, somebody, somewhere is going to rely on this promise, and a consequence of this is there will be GPL software out there that effectively gives you something that should support an estoppel. It's going to be very difficult, if not impossible, for Microsoft to renege on this.

It is fairly safe* to take them at their word here.

* - usual disclaimers apply.

Re:Lets be sure to praise em for doing good

Microsoft irrevocably promises not to assert...

It does appear to be legally binding by the tone of the analysis in the TFA.

You pretty much automatically have been granted a license to the listed patents and the only term of use is that you lose the protection if you try to file a patent infringement lawsuit against Microsoft concerning the standard.

So, why?

So, can somebody tell me why you would have a patent if you are not going to enforce it?

"Pay no attention to the Patent Lawyers behind the curtains...."

motivation behind this?

Can people highlight the reasons behind this move? I see several possibilities being: positive PR and maybe the not needing to rewrite IE again if a standards war happens. But what else? I doubt the above are the strongest motivations.

Re:motivation behind this?

Historically, Microsoft has not been a big proponent of winning through patents, either by preventing competition or extorting usage fees. They like to win in other ways. The big software houses see Web Services as the key towards the next great era of business software, and they all like their chances. But that only happens if they can avoid getting stuck in a mire of standards dueling and IP litigation (see: Blu-Ray/HD DVD).

Notice that the pledge includes the standard defensive measure - if you sue Microsoft for infringing one of your patents, it's void. But it was carefully crafted so that only Microsoft code used to directly implement one of the specifications is covered by the defensive clause - not all of Windows and MS Office for example. That's perhaps the most impressive part of the pledge.

Microsoft HAD to do this

because its patent (on XML in this instance) was soundly thrashed about and it had to re-word it thus reducing its impact.

Story on it here: http://computerworld.co.nz/news.nsf/UNID/E6D44C460 0041E39CC2571D4007DF1C8 [computerworld.co.nz]

snip
The patent will no longer cover the XML file formats that Microsoft is using and therefore anyone is free to interoperate with Microsoft file formats without fear of patent litigation from this particular patent
snip

The prior art around AbiWord's handling of XML basically did for the original patent Microsoft was after. The new one doesn't really have the same issues for the industry at large.

Dialog

Act One

Setting: 1990s

Developer: "Man, java is the shit!" (hey, it was the 90s, everybody spoke like an idiot)

Microsoft: "Then you'll love J++, it's more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."

Developer: "Cool, sport me a copy!"

Microsoft: "Not so fast, it's $300 a personal license."

Developer: "No thanks."

(Scene ends)

Act Two

Setting: late 1990s

Developer: "JSP's are stupid awesome."

Microsoft: "Then you'll love ASPs, they're more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."

Developer: "Cool, where do I get the compiler for VB or this .NET stuff?"

Microsoft: "Well, you can make ASPs for free and stuff and almost everyone has IIS anyways ... but to make applications that do anything at all you need our libraries. You need to buy Visual Studio and we're afraid it's a bit pricey ..."

Developer: "No thanks."

(Scene ends)

Act Three

Setting: the oughts

Developer: "XML makes my life easier but it's not standardized."

Microsoft: "Use our standard, it's the best! Uh, it's kind of sorta free. You can edit it easy and use it. *cough* but we've got some patents *cough* so go ahead and use it."

Developer: "Wait, what was that last part?"

Microsoft: "Aw, christ, well, to stop everyone from slowly eating away at our dominant market, go ahead and use it. We promise not to sue but no backsies on these patents!"

Developer: "What the fsck, Microsoft, get it through your heads, we just want to get along. Stop charging us for everything (even standards). Change your business model."

(Scene ends, developer storms off to go play nice with the Sun & the rest of the world)

Heres a thought

Maybe they should sign them over to a 3rd party such as the FSF instead of making nonbinding promises.

A promise

Is easily broken once you have gained the upper hand.

There is no law against: " we changed our mind" ( + marketing spin )

Sweet

Nice. A bit of assurance from a voice I trust. I can sleep well now. Good night.

Breakable Pledges

What legal binding do these "pledges" have? Why not back up the pledges by just releasing the patent into the public domain?

Good, positive attitude

Microsoft's position is that of someone in a warehouse full of gasoline cans. Let's not start throwing lighted matches around.

It's a positive step, because it shows they can act rationally, having had their share of trouble from software patents. It also goes to show that, if software patents are bad for Microsoft, they should be considered generally as a Bad Thing for the software business in general.

There is a general attitude in Washington, sponsored by the ??AA, that any law that creates more "intellectual property" is good for business. Microsoft is sending a message that it ain't necessarily so.

Promise isn't worth much.

Promise unless is in the form of a written contract, isn't worth much. Things must be taken in the context of capability, not intention; for intention could change easily and quickly. Just because Macroshaft promises today that it will not sue, does not preclude the said action in the future, since its patents are enforceable but (non-specific) promise isn't.

Promise

Quoth Microsoft: We hereby solemnly pledge not to use these patents to scare our customers away.

Competitors

Of course, they said nothing about using the patents against their competitors or vendors or users of competitor's products. So what have we gained? They won't sue you, as long as you use or distribute _their_ products. Well, thank you very much. The chilling effect of software patents on the industry is still as strong as ever.

SO

if they're not intending to use them, why did the get them in the first place? Its like someone pointing a gun at your head but saying "I won't pull the triger, honest".

This is idiotic

The whole idea behind a patent is to give the patent holder an amount of time with which to make money off their invention. Microsoft patenting web elements then not enforcing the patent is just a bloody waste of time.

The only other reasoning I can see behind this is so they can say 'yeah we did this'

I'd be happier...

...to be one day reading a joint press release from MS and IBM and Apple and HP and a large, large list of other major companies all holding a news conference where they decry software patents and business process patents as a really bad idea, and call on Congress to just change the law, and in the meantime they promise to not persue a single additional one. *That* would be impressive and give a better sense of confidence and true intent.

Until then, it is like the global status of nuclear weapons. Some nations have them (but they won't give them all the way up nor allow any smaller nations to have them), some nations don't have them but apparently want them, there has been some noise about never using them (again) or reducing the total numbers,etc, maybe all the way to "none", but until the "no nukes anyplace anytime for any reason" process is transparent and open to anyone anywhere and any time to inspect and verify-sorry, *no trust*. I trust none of the above with nuclear weapons, to never be dinks with them. I trust none of the above with software or business process patents to never be dinks with them. The old adage is still true, talk is cheap.

Is this not just marketing?

The implicit message conveyed is that Microsoft has patented all these standards, giving the impression that all these public web standards are thanks to the innovation of Microsoft. They have contributed to ssome of these (most notably the SOAP specification), but web services are not just due to Microsoft. Furthermore, having contributed to SOAP as a public standard in a W3C process should certainly have prevented them from being able to patent it (or am I wrong?). SOAP is, however, included in the list of 35 software patents which are not enforces??? I would think that the W3C would have a policy that if a company contributes to a public standard and then patents it, that that company would be prevented from participating in any other community processes. Does anyone have the actual list of patents?

How about .NET?

I would love Microsoft to make this statement about their .NET related patents. C# is a very good language, and the .NET framework is excellent. I would love to use Mono to make cross-platform C# applications, but the fear of Microsoft striking down and killing various implementations of the runtime via patents is too dangerous.

Free licenses would be better

...a new promise not to assert its patents with respect to 35 listed Web Services standards.

Free licenses would be better. Then the promise couldn't be changed in the future.

Re:Uhm...

Itsatrap

Re:Uhm...

The banner is not red.

You have the killer eye fungus.

You are bleeding into your eye.

Soon it will eat your brain.

Why not?

Why keep the patents if you're not going to use them? It's just blatent patent hogging.

As much as software patents may be a horrible idea, and as much as people here generally hate Microsoft, maybe this is a *good* step? The company has pledged publicly that they won't actually assert their patent rights... and since these are patents we're talking about, it means that noone else can either.

Maybe it's just the sort of protection that the open source movement needs so that we *can* innovate without having to jump through a bunch of hoops or worry about facing legal action?

Re:Then why get them?

So nobody else can patent the same thing and then sue microsoft for infringement on something they developed. It's a CYA (cover your a**) patent, as many are nowadays.

The Monetary Value?

I think a lot of companies (like the companies mentioned in this article) obtain patents but don't hire patent trolls to go about flexing their lawsuit muscles.

What's the point of the patent? Well, especially on standards, you get to maintain complete creative control over the direction of the standard and it's kind of a safety to always make sure everyone depends on you.

I also think that companies might consider patents as an asset when they calculate their balance sheets. I have nothing to back that up but since patents are continually bought and sold (see Intellectual Ventures [com.com]) so they must be assets to some degree. This looks very good to investors & stockholders.

Afterall, Microsoft might not use these patents but what happens if they sell them for a huge chunk of change after everyone is using the technology? Massive lawsuits?

Re:Reminds me...

I read your post as

Billy: Come over here.
Me: No! You'll hit me!
Billy: No I won't.
Me: Yes you will.
Billy: No I won't, I promise.
Me: Uh, okay.
Billy: (PUNCH!) Sucker!

Re:Why

It's not patent hogging. Companies today have to apply for patents, even when they don't plan to enforce them, for purely defensive reasons. If you don't apply for the patent first, someone else will come knocking at your door who did.

The thing about this article that I don't understand is that the part about it being "a significant shift in how Microsoft is dealing with open standards." (emphasis mine) AFAIK, Microsoft has never sued anyone for patent infringement, and has an unwritten policy against it. The only difference here is that they are writing it down. Even the post states it "is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema". So again, how is this a significant shift?

Re:Why

Furthermore, IIRC, patents come with an affirmative duty to enforce the patent; failure to do so can lead to loss of the patent. So a pledge not to "assert" (i.e., enforce) the patent (contrary to, say, an open public conditional offer of a free license to use the patent) might well jeopardize the patent itself.

Protection against patent suits

A good reason to patent something you "invented", even if you have no intention of enforcing them yourself, is to prevent some small company that does nothing *but* patent from patenting your "invention" and coming after you. Even if you had "prior art", the case costs money to actually win, so you might feel compelled to settle to make it go away.

Microsoft normally doesn't sue over patents, but they're the biggest target for these patent-specialist companies (since MS has the most money, and potential suers think MS would be more likely to settle since they can do it without missing the cash), so they patent their stuff for their own protection.