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PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then they have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can.

That's one hell of a burden of proof to put on yourself. I don't believe you can POSSIBLY prove that to be the case in any objective way

That's a little disingenuous, in so much as it's impossible to prove anything outside the realm of pure mathematics.

That said, there are a number of widely accepted ways to support an argument. One of them to a respected authority in the area who supports the proposition. In that connection, I'd like to call Mr. Bill Gates to the stand:

PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.

That's Bill in a Microsoft strategy memo, circulated 1991. Full text in here. I believe most objective reviewers would accept that as rather better than anecdotal evidence.

And so we find that the man who created the most successful software company on the planet would seem to support the proposition that patents are bad for the industry. His solution to the problem is revealing as well.

The solution to this is patent exchanges with large companies and patenting as much as we can.

So MS aren't patenting things on a massive scale because they think it'll be good for the industry. They're doing it because, if the software industry is going to be stifled, they want to be the ones doing the stifling.

The question is, does it really make sense to have a patent system that penalises everyone apart from a handful companies? I can't see that it does.

it is still wrong/unethical IMO for them to ever force OEMs to sale only Windows

These allegations were not proved during the antitrust cases, so MS was not penalized for this. In any case, for an OEM, offering an OS choice has a cost associated with it. They need to validate each model with each OS, and then automate the install process for all options the customer might choose. If that costs 'x' dollars, they generally spend that 'x' on windows and get 90% of the market. After that do they spend 'x' to get another 2% of the market? The economics don't add up, so usually OEMs don't give you an option. There have been exceptions of course. This isn't the first time Dell is flirting with Linux -- it started selling Linux on the precision line around 2000. HP has had free dos as an option on many machines for a long time now. For many years now there have been countless OEMs (mwave, discount laptops to name a couple) from which you could buy machines without an OS installed. The fact that windows adoption hasn't changed means that the alternatives have not been compelling to customers.

...patent-squatting, exclusive contracts, closed protocols, coercing higher-education institutions to incorporate MS-only curriculums...

Patent-squatting: this is when you patent something, wait for somebody to release a product and make big bucks, and then you sue them for patent infringement to get a slice of their pie. MS doesn't do that. They actually make and sell products that are protected by thier patents. Their patent strategy has historically been defensive (read this memo by bill gates for details: http://www.bralyn.net/etext/literature/bill.gates/ challenges-strategy.txt)

Exclusive contracts: these are a part of any business. You sign an exclusive contract everytime you renew your cell phone contract. Apple and AT&T have an exclusive contract for the iPhone. There are countless examples -- this is the norm in the business world.

Closed protocols: If you're complaining about NTLM/MAPI/SMB -- well these things were designed by MS. Why should they allow others to profit from their work? In any case since the antitrust ruling they have had to license all thier protocols and APIs. That ruling expires in 2007. MS has stated that it will not object to extending that ruling to 2012. So again, if there are no compelling alternative implementations, that is not MS's fault. Where there are good alternatives (for example Samba for SMB), people can and do use them. I fail to see the issue.

Coercion, cirriculum, etc: This is unfounded. I have two degrees in Engineering and save CS101 I have never taken an MS-specific course. CS101 had a whole bunch of MS Office stuff in it. Makes sense -- that's the most common productivity s/w used. As a teacher I'd want to give my students the best chance of success possible -- that means exposing them to tools they are most likely to use in the real world. Similarly the media labs were full of Macs w/ Photoshop. No conspiracy. Success begets success -- that's life. OTOH, during all my CSE courses, I cannot begin to count the number of Solaris and Linux machines I used. Aside from hobby stuff, school was the last time I coded on those platforms. I've coded J2EE web apps that have run on Tomact/DB2/Linux in production -- but when developing the app the entire team used Eclipse/Tomcat/MySQL/Windows. Our CVS was on Ubuntu. So people basically use what's most convenient for them. If cost is prohibitive they find alternatives. The cost of windows is worth it for what we needed to do. If a team member didn't think so (or just wanted to be different) they were free to switch to Linux or OS-X or whatever.

there are literally hundreds of FOSS developers who are eager to develop the drivers if they could get decent specs and not have to reverse-engineer all of the drivers from scratch

This is really more of the same arbitrary justice that make software patents a bad idea in the first place

How so? MS paid Fraunhoffer for the patents (as did the rest of the tech industry) which were co-developed by Fraunhoffer, Alcatel-Lucent, AT&T. If Fraunhoffer was not the right authority to license these patents, Alcatel should have sued them for falsely representing themselves as such. That makes sense, and that's the nutshell version of what the Judge ruled.

Their prowess in court only strengthens their position as lord and master.

Your hatred of MS is blinding your objectivity, and even your desire to seek the truth. MS adopted patents as a defensive strategy (see this 1991 memo from Bill Gates http://www.bralyn.net/etext/literature/bill.gates/ challenges-strategy.txt. Even back then he seemed to understand the ramifications of software patents better than anyone else. Also note his referencing of this memo calling out the dangers of software patents: http://lpf.ai.mit.edu/Patents/against-software-pat ents.html. The honesty of his stance and clarity of vision is something his critics here should take note of.

What you have to understand is that M$ itself is a patent troll.

What you have to understand is that MS did not (and still does not) have the lobbying power to change the retarded patent system. Don't blame them for playing by the rules and making the best of the hand they are dealt with. The OSS movement has more power because the entire industry is rallying behind it - but MS has an obligation to its shareholders to not become a part of that movement - linux on the desktop threatens to erode MS's core business. It's really that simple..

Almost all of their software has come from predatory acquisitions but the market has dried up because people are no longer willing to risk their money in the business where M$ can crush them. You must have noticed that all of the innovative companies, Google, Wikipedia, Facebook and others are all using gnu/linux and avoiding the desktop in order to make money. M$ has built themselves a patent war-chest to assail those businesses, and has been instrumental in setting up business method and other stupid patents. Others have taken advantage of the situation, but that does not make M$ any less culpable.

You conveniently left Apple of the list of 'innovators'. Apple is extremely innovative, they do not avoid the desktop and they have a patent war-chest. Naturally it was inconvenient for you to mention them. Google has its share of patents as well. It's really rich of you to think that Google will ever donate any of its search-related patents to OSS. They will donate any patents that help erode MS's core business. They will hold on to any patents that help them maintain their core business (search). Are we to hate them for that? Absolutely not -- it's good strategy. But hating MS for the same behavior makes you a hypocrite.

No additional certainty has been added to the market that can benefit anyone. The case is far from settled but it has already cost both companies boatloads of money. Only the largest companies could weather that kind of storm and this will keep investors and small companies out of the business.

Finally some sense. And while this is true, think about a world without patents -- how will any small company prevent an MS/Apple/Google/IBM from using/reverse-engineering/copying/whatever thier work and eroding thier business? I'm not a fan of the current patent system but I don't think getting rid of software patents is the answer. The very purpose of patents is to protect the incentive to innovate. Whether the solution lies in better screening so that fewer 'obvious' things become

The 1960s space program was only possible because of the freely cooperative relationship between the organizations and businesses involved. The sharing of ideas, methods and all sorts of patentable technology took place between all of the stakeholders without concern for license fees for use in the space program.

Part of the reason was the secrecy with the ongoing race with the old Soviet Union. A company could not file a patent without the patent being publicly available from the US patent office. The other reason was that the end user, the US Government, would just appropriate the royalty free use of any patent with space or military applications.

Whatever that reasons, the rabid and successful development of the space program would not have been possible in today's IP lawyer driven patent filing, royalty seeking economic environment.

A similar situation took place in the software industry from 1970 to 1990, to quote:

PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn't done any patent exchanges tha I am aware of. Amazingly we havn't found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren't simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software.

The space frontier needs to be designated a patent free development zone. Also without the current need for cold war secrecy, the US Government should encourage as much design development to be done in an open source licensed manner.

If people had understood how patents would be granted when most
of today's ideas were invented, and had taken out patents, the industry
would be at a complete standstill today. I feel certain that some large
company will patent some obvious thing related to interface, object orientation,
algorithm, application extension or other crucial technique. If we assume this
company has no need of any of our patents then the have a 17-year right to take
as much of our profits as they want. The solution to this is patent exchanges
with large companies and patenting as much as we can.



Challenges and Strategy, Bill Gates, May 16, 1991

Microsoft's original reason was defensive. The patent FUD against Open Source is more recent, and trying to actually use those patents may be a very bad move;

  Open Source Developers are very often individuals, non-profit organisations, or a loose collection of interested parties. There may be no clearly defined target, or nobody with deep pockets worth sueing.

  Open Source Development is too agile; A court case could take years, the infringing parts may be rewritten in weeks or even days.

  The patent itself may well be overturned. If the patent is at all questionable sites like Groklaw will rapidly uncover prior art or any other grounds to dispute the patent's validity.

Er. That's a bit of a leap, there. Personally, while I agree that Burst is in the wrong because they are enforcing software patents, I note that Bill Gates understood perfectly and with remarkable clarity in 1991 exactly what was wrong with software patents [1], but decided that that evil was to Microsoft's advantage.

So it's bad guy vs. bigger bad guy here, and the losers are e.g. linux people who want to implement video players.

[1]http://www.bralyn.net/etext/literature/bill.g at es/challenges-strategy.txt
- see "category 3".

Here's a link to the original source for this quote.

-- Bill Gates, 1991

If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique.