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Microsoft Won't Assert Web Services Patents 155

Posted by kdawson from the so-don't-sue-me dept.
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."
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Microsoft Won't Assert Web Services Patents More

Microsoft Won't Assert Web Services Patents

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  • Lets be sure to praise em for doing good (Score:5, Insightful)

    by jmorris42 ( 1458 ) * <jmorris@[ ]u.org ['bea' in gap]> on Tuesday September 12, 2006 @05:41PM (#16092576)
    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: (Score:3, Interesting)

      by Em Adespoton ( 792954 )
      I'm curious though... what do these pledges actually mean? Are they legally binding? Can they be rescinded at some point in the future? If these pledges really mean that the patents are unenforcable until they expire, I'm all for it... but given MS's history, I want to be absolutely certain on this before doing anything that messes with these now well-known patents (can't claim ignorance).

      • Re: (Score:3, Interesting)

        by pthisis ( 27352 )
        I'm curious though... what do these pledges actually mean? Are they legally binding?

        In particular, anyone have any idea to what degree does this constitute an estoppel against future patent litigation against web services implementations?

        http://en.wikipedia.org/wiki/Estoppel [wikipedia.org]

        • Re: (Score:3, Interesting)

          by DragonWriter ( 970822 )
          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.

          • Re:Lets be sure to praise em for doing good (Score:5, Insightful)

            by TekPolitik ( 147802 ) on Tuesday September 12, 2006 @07:20PM (#16093088) Journal

            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.

            • 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.

              Having just read the text of the Microsoft promise, there is an argument (although not a strong one) that this may not be the case, however if that argument is successful, it would involve claiming that the promise as made is a contractual offer and so reliance on the promise while complyin

            • So what you're saying is that everything hangs on the interpretation of "suffer detriment" in a possibly protracted court case... in the case of GPL software, MS would argue that because the software itself is freely available, the author did not profit from it in any major way, and so is not suffering detriment to have it removed from the market. Meanwhile, the developer would run out of money, and settle out of court.

              Personally, I'd prefer to have something a little more solid (like any suits brought t

              • in the case of GPL software, MS would argue that because the software itself is freely available, the author did not profit from it in any major way, and so is not suffering detriment to have it removed from the market.

                They could argue it, but it wouldn't get them very far. The mere fact that somebody has put a lot of effort into building it is evidence of value (especially in a promissory estoppel case). Moreover, given that the person has chosen to give the software away, some of this value will be fou

      • Re:Lets be sure to praise em for doing good (Score:4, Informative)

        by Kesch ( 943326 ) on Tuesday September 12, 2006 @06:32PM (#16092866)
        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.
        • The 'promise' of a license made in the context of a standards process is almost certain to be considered binding. The standard is agreed on the basis of the promise. The problem that people have been facing is that the traditional IETF reciprocal licensing terms have turned out to be almost certainly unenforceable when they allow for a sublicensing term as people looked at the SCO case. Even if they are enforceable in theory they are not an effective way to pre-empt a case. A lot of time was spent in rath

    • Re: (Score:3, Funny)

      by moochfish ( 822730 )
      Anybody up for some hardcore skiing? I hear there's record snowfall in Hell right now!

  • So, why? (Score:2, Interesting)

    by McFortner ( 881162 )
    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...."
    • Because if you don't have the patent, someone else will get it and enforce it on you.
    • So, can somebody tell me why you would have a patent if you are not going to enforce it?

      Easy. So somebody else doesn't patent it and prevent you from using it, or extort licensing fees from you.
    • So, can somebody tell me why you would have a patent if you are not going to enforce it?

      One reason is to preempt anybody else from patenting the same idea.

      Of course, you could do the same thing by just publishing the idea. But filing a patent buys you time. Publish the data without patenting it, and anyone can use it right away. Patent it, and keep your options open -- you can always decide to open up royalty-free licencing later.

      (I'm not suggesting this is MS's reason. Just giving an example of one rea
    • Sometimes you patent something to prevent someone patenting the same, or similar, thing later and gouging you for it.

      Also, if there is similar prior art, then getting a patent shows that yours is sufficiently different to not infringe.

    • Re: (Score:3, Interesting)

      by Zeinfeld ( 263942 )
      So, can somebody tell me why you would have a patent if you are not going to enforce it?

      To stop some bastard from reading the spec and patenting it.

      This has happened to me a very large number of times. I am told there are roughly 100 US patents on work I have done filed by other people after the work was published.

      So now I patent ideas aggresively as the only way to keep them open.

      I do not worship at the shrine of RMS. I do not beleive that software patents are always a bad thing. The RSA and Diffie

      • I am told there are roughly 100 US patents on work I have done filed by other people after the work was published.

        In which case those patents are invalid. Previously published inventions are not eligible for patent protection.

        • Re: (Score:2)

          by Laur ( 673497 )
          In which case those patents are invalid. Previously published inventions are not eligible for patent protection.

          And how much would it cost to prove that in court? It's not like you can just wave your prior art at the USPTO and they'll automatically invalidate the patent.

          • Umm... companies don't just go suing random Joe Blow on the street for fun. By the time you got sued for patent infringement, odds are you could afford to defend yourself. And if you have evidence of prior publication, you'd win.
        • In which case those patents are invalid. Previously published inventions are not eligible for patent protection.

          I have been involved in patent cases where the cost to the defence has been over $5 million even when they 'won'.

          Several of the bogus patents have been used to successfully extort tens of millions in damages and fees that are entirely unjustified.

          Today I read a patent filled in 2004 that tries to claim a standard agreed in 1997.

          I know that they can be shown to be invalid but it will cost

    • So someone else doesn't file the patent and enforce it.
    • It's like telling a dog, that doesn't want a collar and chain around it's neck, "Here doggie, doggie, let's put this chain on your neck, and we promise we ain't gonna yank it! Good dog!" What's wrong with dogchains if there is a promise they will never be used and abused? They are just like not having a collar around your neck, after all, the covenant is legally binding unless - unless, aha, I knew there was a catch! - unless you inspect the small print, which is subject to interpretation by lawyers in a co

  • Microsoft HAD to do this (Score:3, Interesting)

    by Audent ( 35893 ) <audent.ilovebiscuits@com> on Tuesday September 12, 2006 @05:46PM (#16092617) Homepage
    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 (Score:3, Interesting)

    by eldavojohn ( 898314 ) * <eldavojohnNO@SPAMgmail.com> on Tuesday September 12, 2006 @05:47PM (#16092622) Journal
    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)

    • Re: (Score:2, Insightful)

      by CCFreak2K ( 930973 )
      ...go play nice with the Sun...

      Sometimes I think the only reason Sun Solaris is open is because they'd be dead if not. I also think the only reason OpenOffice is open is because Microsoft Office isn't.

  • Heres a thought (Score:2, Interesting)

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

    • As in, public-domain them?

      Because I don't like trusting the FSF with so much. I can understand the GPL being the way it is, but really, how long can it continue to be the FSF?

      Actually, I believe this is why some software works the way it does -- Gentoo asks that you sign over the copyright to any ebuilds you submit to the Gentoo Foundation. That way, if they want to change the license of the distro later, they can do it. I like this better -- right now, Linux can't switch to the GPLv3, because everyone o
  • Nice. A bit of assurance from a voice I trust. I can sleep well now. Good night.

  • Breakable Pledges (Score:5, Interesting)

    by Doc Ruby ( 173196 ) on Tuesday September 12, 2006 @06:04PM (#16092723) Homepage Journal
    What legal binding do these "pledges" have? Why not back up the pledges by just releasing the patent into the public domain?

    • Re: (Score:2, Informative)

      by Anonymous Coward
      When you give your word and publish it in durable form, that's pretty much binding. It's not a contract (which requires explicit mutual agreement and thus EULAs don't contain the word "contract"), but it hardly constitutes tresspass when you put out the welcome sign. They could conceivably revoke future uses of the patent at some arbitrary point, but it'd be a pretty hard sell to a judge, let alone a jury to sue anyone over it.

    • What legal binding do these "pledges" have?

      None. Not only that, but if these patends ever end up in non-Microsoft's hands (it -could- happen; say in 10 years), then that party won't even care that Microsoft has promised not to fight.

  • Good, positive attitude (Score:5, Insightful)

    by mangu ( 126918 ) on Tuesday September 12, 2006 @06:11PM (#16092756)
    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.

  • 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.
    • I think this part takes care of the competitors complaint you have. It was buried right after the first header, so you might have missed it.

      Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for making, using, selling, offering for sale, importing or distributing any implementation to the extent it conforms to a Covered Specification ("Covered Implementation"), subject to the following.

      If a competitor uses any of these patents, Microsoft is not going to sue. No re

  • SO (Score:2)

    by JustNiz ( 692889 )
    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".
    • 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".

      Because we live in a world (to continue your analogy) where other people DO have guns, so companies like MS are forced to pack pistols themselves.

      Its a little like nuclear deterrence - when the others have nukes you need them to, even though most people wish they didn't exist.

  • 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 o
  • 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.
  • ...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.

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