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Microsoft's Patent Problem
pens writes "Microsoft suffered utter defeat at a crucial pretrial hearing in what appears to be the highest-stakes patent litigation ever--one in which a tiny company called InterTrust Technologies claims that 85% of Microsoft's entire product line infringes its digital security patents."
...and rebuked the company's lawyers for wasting her time by promising proof that never materialized--legal vaporware, in essence.
As far as I can tell, the patents that InterTrust owns cover the technology; They don't go into details on accomplishing what they describe.
Q1. What if Microsoft developed a way to carry out their authentication (using these trusts) either
1. On their own or
2. Without even hearing about InterTrust's patent?
Q2.In the case of #2, everyone is probably saying "It doesn't matter..." but if this was the case, how would/did InterTrust find out about it? Microsoft doesn't leave their source code lying around the internet; Now they do give SDK's, but (at least prior to .NET framework), the SDK is vague on how things like authentication happen. If you want to learn about NTLM, you need to go to a site like Security Focus. The helpfile in any SDK that Microsoft releases will not talk about the underlying technology (or lack thereof...heh)
Of course, I'm not against suing Microsoft, but I'm just curious as to how this whole suit came up... Maybe someone else out there can enlighten me?
If this company holds patents on DRM, what does this mean for DRM in Linux?
.NET networked computing platform, to name just a few. If settlement talks fail and InterTrust prevails in court, it would be entitled to a court order halting sales of all those products. InterTrust CEO Talal Shamoon asks rhetorically, "How much would that be worth to Microsoft?"
I did enjoy reading the article. My favorite quotes are:
an Oakland judge resolved 33 of 33 disputed issues against Microsoft and rebuked the company's lawyers for wasting her time by promising proof that never materialized--legal vaporware, in essence -- ouch!!
InterTrust claims that its inventions cover technologies that Microsoft has been weaving into its Windows XP operating system, Office XP Suite, Windows Media Player, Xbox videogame console, and
Not that Microsoft would ever allow that to happen and could probably keep this in courts until either 1) The patents expire or 2) XP is no longer supported or sold anyways.
Things you think are in the Constitution, but are not.
....that software patents are just a bad idea.
Since they are so interested in intellectual property, they must be overjoyed that the courts are protecting IP so zealously
Democracy Now! - your daily, uncensored, corporate-free
Unfortunately, your average investor isn't clued in enough to realize that InterTrust has a very good case while SCO has a very bad one. Thus, the recent runup in SCO stock.
The cake is a pie
Put if software patents are bad (and I believe they are) they're bad even when someone is putting the boot into Microsoft. Let's face it, this may be a 'small' company putting the boot in, but it's a 'small' company owned (mostly) by Sony. Patents still only help those with very deep warchests.
We must continue to oppose software patents and that means all software patents, because that's the only way we can maintain a playing field level enough for us small guys to play at all.
I'm old enough to remember when discussions on Slashdot were well informed.
And what kind of patents are they? Are they the
same old vague and inconsistent patents being
tossed around by Amazone or Divine Inc?
If so, then I have no sympathy for them, and I
hope MS crushes them as a warning to others.
I'm a Sun and Linux guy, not a big MS fan at all,
but bad patent schemes are just that, bad.
Vip
That company is own by Sony and Philips, it's not public. Also, the article insinuates they're looking for payments in the billions, not just millions. If this patent gets upheld, it's going to cost a lot, and not just a one time charge by the gist of it. The good part is that this may cause the patent nonsense glass to finally overflow.
Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws-Plato
In other words, they've been left with the choice of killing the patient OR killing the disease. They can't keep both.
InterTrust's suit is essentially identical to SCO's, and may well have been prompted by it. Either as a defensive strategy ("if they win, we win by default, and if we lose, so do they"), or it may be part of a simpler, more brain-dead, but ultimately more common strategy of "reap in the cash while pillaging is in style!".
Either way, it's going to get the attention of The Powers That Be, who really are faced with the nightmare scenario - to preserve Bill Gates' empire, they have to cripple the very mechanisms that Microsoft and other large corporations have used to create those empires in the first place.
Microsoft -could- pull another Windows 95 -> Windows 98 stunt, as they did with the first round of anti-trust action. But they'll have to be quick, and now that they've been found a monopoly, it might not be quite so easy.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
On the other hand, if InterTrust wins the patent licensing fees will probably make DRM much less of a nuisance,
Nope, it just means legit things like the iTunes Music Store and BuyMusic will have to charge more money to cover the licensing costs. It means that other attempts to figure ways to legitimatly allow users inexpensive online access to content will be stalled/aborted. It means that the RIAA and their ilk will continue to have a convenient excuse to go after file sharers because there STILL won't be a viable legal alternative.
But that's why I included question 2 ;-)
Lemme repost it for you:
.NET framework), the SDK is vague on how things like authentication happen. If you want to learn about NTLM, you need to go to a site like Security Focus. [securityfocus.com] The helpfile in any SDK that Microsoft releases will not talk about the underlying technology (or lack thereof...heh)
Q2.In the case of #2, everyone is probably saying "It doesn't matter...(insert Tmack's comment here)" but if this was the case, how would/did InterTrust find out about it? Microsoft doesn't leave their source code lying around the internet; Now they do give SDK's, but (at least prior to
That was really the point of my post... Q2.
Sure, we all like to see the little guy yank Micro$oft's chain. But software patents are an insidious practice, meant to stifle market competition and innovation.
Think about the implications if MSFT loses. Sure, the evil empire is bought to its needs. Meanwhile, Amazon's patent on "one click shopping" and other nasty tricks get support in federal court.
I want software patents stopped now. Let the demise of MSFT take care of itself.
Yes, but it doesn't completely eliminate the possibility of Microsoft buying the patent itself. If all patent rights are passed to Microsoft, they would have just the bargaining chip they need to prevent anybody else (including OSS) from developing competing security products. They'd just make the price tag for licensing use of the patented technology high enough to discourage people.
GreyPoopon
--
Why is it I can write insightful comments but can't come up with a clever signature?
Ok, let me say first I hate all that Microsoft stands for. Having to use (and support) their software sickens me. However, this type of dispute is indicative of the major problems today with IP patents. Broad process patents such as these will hurt us all in the end, tying up the courts, infringing upon many "good" companies needs to innovate their software products.
While i would like to hammer M$ as much as anyone, this is just the tip of the iceberg for litigation and everyone will feel the pain sometime soon..
Errr... I think you missed the point. SCO isn't SCO, it's Caldera; InterTrust isn't InterTrust, it's Sony. Sony don't like Microsoft very much, and Sony won't sell cheap. We could get a lot of laughs out of this yet...
But software patents are still a bad thing.
I'm old enough to remember when discussions on Slashdot were well informed.
Root for InterTrust. If Microsoft wins, it will just turn around and patent the techniques (if it hasn't already). We're all screwed either way. Either InterTrust patents the techniques and potentially, though highly unlikely, allows Free software developers to use the patents in perpetuity, or Microsoft patents the techniques and absolutely bars Free software developers from using the techniques.
If Microsoft loses, at least, we get to see it hurt real bad (if only for a while).
This eliminates the buy-out option.
Actually, not really. Sony and Royal Philips could use this to their advantage. We all know that Sony complained about microsoft trying to change their licensing deal after <cough> the settlement with the doj. Maybe they can use this as a bargaining chip with MS? They could haggle for a better OEM licensing deal and hold this over MS or they could possibly just force MS to license their IP. Or just force MS to pay (insert X billion here) for the company
OTOH what do I know :-)
In the long run Microsoft will simply license the patent. There is no way that they would allow themselves to be prevented from shipping product, and at the point that it is clear that the legal team has failed, a vast quantity of cash will appear.
Frankly, would wish that Microsoft would win this one, because I would prefer that they come up with a way to make patents less of an issue in the industry than to have the tempo of lame patents increase due to a jackpot payout. However, I suspect a license will be negotiated. It mare come dearly after this legal fumble however.
Sig under construction since 1998.
"At its prebubble height, InterTrust (founded in 1990) employed 376 people and marketed its own software and hardware products; today it consists mainly of a patent portfolio, 30 employees, and this lawsuit."
Great, an IP only company. Wonderful
"Microsoft argued in court that crucial phrases in InterTrust's patents were too vague to be enforceable, and that others required such narrow interpretation that they would have been hard for Microsoft to infringe."
Don't we claim stuff like this all the time about Patents. This is a test of someone with real money being able to say the USPTO is full of shit and these patents are vague adn useless.
Win or lose, the more of this crap the better. It will eventually get so bad that someone will change the USPTO.
because I have been enjoined by this Holy Office to abandon the false opinion which maintains that the Sun is the centre
"ADOT Troll"?
This guy copied this exact comment from this post, from the same article, and the mods didn't see it!
Right, that's all they are *now*, but they were close to 400 people, and they actually invented, implemented, and patented the stuff themselves. It's not like they just went out and patented an idea, or bought and patented someone else's idea.
To make it even worse (in my eyes), this is actually one of those good 'ol Microsoft things where a much smaller company shows the goods to Microsoft as part of a licensing partnership, and then Microsoft goes off and does it themselves. InterTrust and Microsoft *used* to be "partners".
We're now seeing the inevitable result of a system wherein the unequal playing field forces companies to do battle in the intellectual property realm rather than in the marketplace. Rather than come to market first with the best products, it's now about building up an intellectual property portfolio and torpedoing whomever surfaces first.
The business climate that Microsoft helped to engender has rebounded back on them with a vengeance. But that doesn't make InterTrust the good guys. They're just slimy opportunists who have elected to go along with the prevailing attitude, which is "Build up a company the old fashioned way? Screw that! Let's sue instead!"
Read the EFF's Fair Use FAQ
It is conceivable that InterTrust would be a viable company today if Microsoft had licenced their products and paid them a fair price for them (assuming of course that MS *did* use technology that infringed on the patents, etc, etc...).
Just a thought.
This post cannot be rebroadcast without the express written constent of Major League Baseball.
Realize that it would not be in Microsoft's best interests to reform patent laws--do not forget the nice sizeable patent portfolio that they have (including 2 patents of their own for a DRM OS).
No, the likely outcome of this is that MS will settle this out of court for a nice big fat fee from its cash horde, and patents will continue to stifle competition and innovation, and MS will not be delayed in implementing DRM (likely that, as they did with the anti-trust suit, they will most likely continue implementing DRM as this goes along regardless of the court action).
"Life is tough but we're tougher. You only get what you give, so give all that you've got." --Tony LaRussa
Yes, God forbid anyone should actually be able to recover the costs associated with researching and developing new technology, let alone be able to profit from it. Patents are not inherently evil. They provide inventors an incentive to spend their time and money developing inventions. If patents didn't exist, inventors would be screwed if they spent their whole lives and fortunes inventing a new widget only to have it copied by a million competitors as soon as it hit the market.
There is a balance, however, between giving the inventor the ability to benefit from their invention, and giving that benefit to society, which is why patents expire. I think if you want to complain about patents, you should complain that they don't expire quickly enough for your tastes. Although, I think patent expirations are a godsend compared to the current expirations on copyrights.
I am so sick of this esoteric patent corporate raider bullshit. I hope MS fucks them up!
If something is copyrighted, and not licensed with an open source license, you can get your ass sued for using it. This is exactly with SCO is suing over. If IBM had contributed to BSD instead of Linux, the lawsuit would be no different. (Of course, the fact that the SCO suit is almost certainly frivolous makes a huge difference.)
This is not going to be "the coffin of DRM" by any means, as InterTrust is backed by really big companies like Sony and Phillips. What it means is that Microsoft is on the short end of the patent stick and therefore can't monopolize DRM like they'd dearly love to.
The cake is a pie
In the political world it's the ridiculous cases that often drive forward change, and in the legal world they help flesh out the vague boundaries of the law.
Whether it's the cost of AIDS drugs in Africa or some patent portfolio company pulling the rug out from Microsoft, it's things that this the illustrate the societal implications of patent silliness and make people question whether the status quo is desirable. The more big headlines get generated by ridiculous patent cases the more likely it is for something in the patent world to change.
Bring on the comedy!
Consider just how many customers Microsoft has. If those people and businesses (and the government) stopped wasting so much money on Microsoft products, then that would help the economy. Maybe your paycheck (assuming you don't work at Microsoft) would be bigger and your stocks (assuming they aren't Microsoft) would be worth more.
If you want to sympathize for megacorps, pick one that produces something useful or provides a useful service; don't pick one as hollow and empty as Microsoft.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
If this suit got MS into buying some patent reform I am completely behind their efforts. If it doesn't then let them hang.
I don't want knowledge. I want certainty. - Law, David Bowie
No, the bad guys (Evil Patent Lawyers) will definately win, regardless of the outcome.
and that intertrust have at least been through the courts to prove ownership unlike SCO who are just hoping that no-one finds out that they own nothing... (hopefully anyway!)
---- There are 10 types of people in the world. Those that understand binary and those that don't
Isn't that basically what SCO is doing with *nix right now? Offering the opportunity to license the tech as though they've already won in court?
I work for the Department of Redundancy Department.
Can patents make it more convenient for big wealthy people to fuck the little guy? Or do they create too big of a risk that some big guy might actually get in trouble themselves?
Now, for those new to the debate, lets go over the simple reason why software patents are categorically, provably, and obviously insane.
Assume that the patent office is adequately staffed with an army of geniuses with eiditic memories, who never make poor judgements about what is patent-worthy and what isn't.
Anyone writing code must have to know the entire patent database - millions of patents. They would also have to stay current - thousands of new applications a day, on a slow day.
Impossible? Duh.
"Uh, now what?"
Every piece of software is a ticking patent time bomb - a multi-million dollar civil litigation waiting to happen.
Big players enjoy (and lobby for) patent systems like this because its another tool in the toolbox. You build a portfolio, and it's a great way to cost your competitors millions, threaten their business, their reputation, create FUD, etc. The cases drag on for decades, and hey, it's interesting how whoever has more money to fight them seems to always come out on top.
My greatest dream is that a giant like Microsoft will get snared in its own net, and actually start fighting to end software patents, so at least there'll be one less absolutely awful piece of economy-destroying legislation for our children to enjoy.
Want to Know How to Cheat the GPL? Read On!
Then choose who you support on the basis of the principle of the matter and not who the lawyers work for.
The way I see it, if Microsoft fights the patent and wins, this is a win for everyone. A win by a highly prominent company like Microsoft will send a HUGE message about overly broad patents. It makes it less likely that any large company, including Microsoft can use the same tactic on anyone else, since a precedent has been set.
Any other outcome is a loss. Microsoft purchasing the patent or settling out of court is a minor loss. It sends the message that Microsoft thought the patent infringement case was credible. If Microsoft challenges and loses, this is a major loss. It more firmly entrenches broad software patents as a matter of policy.
Karma: Frotzed (mostly due to the Frobozz Magic Karma Company)
I like to see Microsoft cut down to size in court just as much as most Slashdot geeks, but this is not good. Microsoft is right: InterTrust's patents are vague. One might also add that they are pretty obvious, like InterTrust's patent Systems and methods using cryptography to protect secure computing environments, for example.
Monopolies created by the state are highly dubious in competitive markets. They tend to reduce efficiency and the general prosperity of the nation. Queen Elizabeth I (one of England's most popular monarchs) almost faced a rebellion in the later years of her reign because of the monopolies she issued by "letters patent".
So the issue is whether the public benefit from creating artifical monopolies outweighs the public loss from reducing competition. How much of the technology and development encouraged by monopolies would have occured anyway in a competitive market? The answer seems to depend on the industry: fewer medicines would be taken through expensive trials if there was no prospect of a short-term monopoly; most broad software ideas (with little underlying cost) would probably be developed by others in a short period of time.
" [...] InterTrust is owned jointly by Sony and Phillips. This is NOT David vs Goliath. It states that Sony/Phillips bought the company with the explicit intention of going after companies armed with the patent portfolio. Call it what you will, but this is not Good vs Evil, this is Evil vs Evil."
That, my friend, is a question of perspective.
Sony and Philips are not exactly monolithic enterprises, but consist of two distinct competitors in anything with regard to entertainment products. However, Sony and Philips have always been interested in establishing firm and open standards, see DAT, see CD.
Them winning a case in DRM would mean nothing but a victory for the user, because they will not use the technique as their salespitch, but distribution of contents with open standards. I prefer that very much more than leaving all mechanisms with regard to DRM in the hand of one company that firmly believes in controlling and selling the patented mechanisms of enforcing DRM.
Evil vs. Evil?
Hardly.
No. Patents are meant to advance the sciences and when it comes to business model patents and especially software patents they are not working as expected. To paraphrase Newton minus the implied snide, software stands on the shoulders of giants. Patents, by design, kill this. Where do you think networking would be today if SPF had been patented?
Sorry but I have no problems throwing this baby out with the fetid bathwater.
I don't want knowledge. I want certainty. - Law, David Bowie
too vague to be enforceable
Yet the term Windows is specific enough to be a strong trademark. Ummm...
Monopolies aren't evil.
Microsoft is "evil" because they abused their power as a monopoly to hinder competition. To be specific, they threatened OEMs with a revocation of Windows licensing unless those OEMs licensed Internet Explorer instead of Netscape Navigator.
You can argue that Navigator was going to go blammo anyway (and I wouldn't disagree) but that doesn't excuse Microsoft from what they did. They hastened the death of Netscape by abusing their monopoly power. That's illegal. It's also immoral. I probably wouldn't go as far as "evil" but that is your word.
Think of it this way. Being big and strong is not wrong, in itself. Being big and strong and bashing small weak people whenever you feel like it, that is very wrong.
Bluntly, you shouldn't be able to protect an algorithm. An algorithm is a mathematical procedure, which is supposed to be unpatentable. The fact that the patent office is ignoring this basic fact is one reason this whole mess needs to be killed. Now.
If mathematics becomes patentable, that would effectively end several thousand years of progress.
It strikes me as hypocrisy that every time an IP shakedown is committed against Microsoft everyone cheers while you guys continue to condemn the SCO affair. Either you condemn IP shakedowns or you don't. This is total hypocrisy.
In the US, a highly prominent (and rich) company winning a lawsuit is what people expect to happen. It will create no kind of expectation that a smaller organisation could do the same.
There's been no evidence stated that Microsoft ever heard of those guys. Almost all software patents are for stuff that's obvious and Microsoft could have developed whatever it was completely independently of whatever that company did. So there's no basis to think that company is entitled to anything. Nobody forced them to do whatever it was that they did. It's better to just not have software patents. Those who find developing without getting patents doesn't pay high enough rewards, are at perfect liberty to do something else instead. They can invest in aerospace or biotechnology or hamburger chains instead of software development. The rest of us active developers will be much happier to be able to get our work done without have the threat of patent litigation over our heads.
yes, but the bad guys will definitely win.
After having busted my balls in this industry for years and effectively getting nowhere, I sit back and take a look at the POS that is the computer world. We have a huge monopoly on the one hand which knows no tactics dirty enough to gain marketshare. We have tiny little desperate companies such as SCO and Intertrust using the law to effectively cripple any wish to innovate in anything. We have an open source movement on the other hand that can't agree on the colour of it's desktop that spends a lot of effort in talking when threatened, but much less in actually defending itself.
I think I've had it. Let the indians have all these headaches.
Why would any company in their right mind, after winning such a law suit, sell their cash cow? All InterTrust would have to do is sit around, do nothing except drop an occasional law suit on someone and then collect money. What could be easier? What could be more despicable?
I think the more likely possibility is that MS buys them out as part of the settlement.
InterTrust is partly owned by Sony and few other major companies...no way they sell InterTrust to MS. Like you said, Sony and co. can milk MS for all the money it has been milking them for years. Payback is a bitch.
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One is born into aristocracy, but mediocrity can only be achieved through hard work.
Sony? Open? Sony makes good quality products but they love to push their proprietary technology. MagicGate Memory Sticks, MD, memory MagicGate Memory Sticks, Palm OS w/ proprietary extensions, DDCD (w/ Philips), 2.88Mb ED disks, etc. And I'm pretty sure they were among the first to massively copy protect their Japanese music releases. Their plan is world domination, just like Microsoft. They just do it with products that people love, instead of products that people hate but have no choice except to use.
There are two kinds of people: 1) those who start arrays with one and 1) those who start them with zero.
Hello, IANAL, but I've had to translate a few patents in my time, and I've noticed a few flaws with your reasoning above. Given my background, I'll tackle #2 first.
No patent I have seen so far (not many, but enough and in varied enough fields to get a general feel) is actually usable as the recipe you seem to think all patents should be (and common sense would seem to dictate). In fact, I remember asking a number of people (professional technical translators, civil servants, and others) about why the claims were so blooming vague, and being told that claims are deliberately written to be as vague and broad as deemed legally defensible in order to cover as many permutations of said claims as possible. If the patent were in fact a specific recipe for the product in question, then any wannabe competitor need only change a few things in the design implementation to sidestep the claims. That's the only way these IP patent cases work at all -- it's (usually) not that Company X has made a complete duplicate of Company Y's product, or even a partial duplicate, but rather that Company X's design infringes on the claims of Company Y's patent.
On to #1. The problem here is that you assume simply having a patent is enough to protect the little guy. Again, IANAL, but as I've noticed over time, the vast majority of illegal activities are ignored unless someone specifically fights against them. Take jaywalking as a more prosaic instance, and then take copyright as a more apropos example. If violations are not pursued, the offenses are ignored, and in the case of copyright, the legal restriction against the activity (in this case, copying) vanishes. It's not the best example, but 'Aspirin' was once a brand name.
To pull this back to the topic at hand, simply having a patent, i.e. IP rights, on something is not sufficient protection, as one must also have the resources at hand to fight against that right being abrogated. The "little guy who invents something new" often still has a heck of a time competing against the big guys who copy his ideas. Even if he manages to put up a legal fight, chances are he gets bought out by some pittance of a settlement while the Big Company(TM) goes on to make major money. As noted previously in this thread, patents are most helpful to those with substantial warchests.
If you have some tale of the little guy taking on the Big Company and winning big time, I'd love to hear it, as it might restore some faith in the system for me. As it is, I'm feeling pretty damn cynical about IP all around.
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If I can own an idea, does that mean I can legally claim some portion of your soul once I tell you that idea? Or even if you just come up with it on your own? Heck, who needs contracts written in blood...
"What in the name of Fats Waller is that?"
"A four-foot prune."
While I am absolutely anti-Microsoft and I am sure that Hell's sysadmin is Bill Gates, this case is clearly something I would make an exception in my 5 minutes of hatred against Redmond.
The patent system was created mainly in a world where Newton's mechanics was rised to a new church. By the most, it was related to mechanical inventions and mechanisms. During the industrial boom of the 19th Century it was seen as a viable and effective mecahnism to protect inventors.
But computers are not mechanisms by the most. Mostly they are Mathematics, Science and Art. Now these fields demand interaction, exchange and even free sharing of ideas. Besides, the combination of these fields creates a non-conclusive and non-deterministic environment. With a great degree of accuracy, one can determine the limits of most mechanisms. The same is not appliable to programming, where algorithms look like LEGO pieces. But while a LEGO piece has a clear form, most algorithms may deform themselves and take several shapes. They can even brake apart and rejoin again. So, one cannot have clear boundaries where one could make a clear conclusion that a program or algorithm starts "here" and ends "there". Whatever definitions one may claim in a patent, while he doesn't use mathematics and logic, one cannot clearly define a patentable algorithm or program. Using natural language to define a patentable algorithm is falling in the eternal question "Why you cannot program in plain-text English?"
On the other side, almost no program or algorithm is complete per se. Most of all, an algorithm or program is mostly an abstraction. In most cases algorithms of similar structure may be used over tens or hundreds of fields of applications. To become meaningful they need some sort of "translation" to the real world, an interface. But interfaces also carries lots of algorithms. And interfaces may be of several kind, from monitors and keyboards to printers and pens. So one cannot determine the boundaries of the algorithm or program.
So, even if M$ is the Evil in flames, in this case, I am fully M$ support. (no matter my stomach revolves on the idea).
21 of the 26 patents that Intertrust provides links to on their site refer to one or more of four patents on which I am the sole inventor. My four "license management" and/or DRM patents were all assigned to Digital Equipment Corporation (now HP) and are some of the earlier patents in this space.
I've watched Intertust collect their patents over the years and have been regularly struck by the realization that these folk have been successfully patenting ideas that I considered obvious and unpatentable in the 80's or already covered by my patents. Also, quite a number of the things that they have patented are things that I clearly recall having been discussed with Microsoft while I was at Digital or at Microsoft once I joined them (for a brief stay) back in the early 90's.
As many will realize, Microsoft has been long interested in and involved in the process of building DRM software. Many people will, for instance, remember Gates' letter to the industry back in the 70's in which he complained that people weren't paying for software. I personally became aware of Microsoft's interests in licensing back in the late 80's when Digital and Microsoft cooperated in submitting my "Digital Distributed Software Licensing Architecture" to the OSF in response to one of their solicitations. Having spent a great deal of time speaking with Microsoft folk back then, as well as dealing with many of the licensing issues as "Senior Product Manager for Applications Programmability" once I joined Microsoft, I can assure you that folk in Microsoft were aware of and anticipated many of the methods that InterTrust has managed to patent.
The problem, of course, is that simply knowing the methods isn't good enough. You've got to get them patented... But, back then, there wasn't much of a culture of getting software patents. People simply didn't do it. Even at Digital, I remember being regularly told by the patent attorneys that they were very happy to have found a software guy willing to work on patents and how they hoped that they'd be able to use my patents as an example for others.
While there may be "some" meat in the InterTrust case, my personal feeling is that this case is yet another example of the problems we have with software patents. The system was supposed to reward and encourage innovation yet the people who seem to be getting rewarded are not the innovators -- rather, it those who file patents who are getting rewarded. Perhaps, today, we've established that the only rational thing to do is to file for patents on anything you are doing -- no matter how obvious it may seem -- and then hope that the patent office will screw up and grant you something. But that was not always that case. It used to be that if people filed patent applications at all for software it was only for the really "special" ideas. The result is that alot of little stuff or obvious stuff went unpatented until companies like InterTrust, who live on patents -- not innovation -- came along to sweep things up. This isn't the way the system was supposed to work.
bob wyman