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Microsoft's Marshall Phelps On Patents And Linux
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."
why he can't license Microsoft IP to distributors of open source software
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.
Call me crazy, but I actually think this guy is telling the truth about not tackling open source on patent violations. Microsoft has gotten to the point that it may be wearing the crown, but no one likes the king. If Microsoft was going to pull some patent-issue on free software, it would generate a lot of poor publicity for Microsoft, which they do not want. Microsoft isn't a tech company, it is a marketing company that happens to make software. Microsoft doesn't want its main product, its image, to be injured. Just my opinionated two cents.
That's because they've outsourced their litigation to The SCO Group.
We don't see the world as it is, we see it as we are.
-- Anais Nin
Pretty much, they sit on their patents. If someone tries to sue Microsoft, and people do, in droves, thinking MS would rather settle and lose a little money than waste more money fighting it. With all these patents, MS can just say "Why are you suing us? We have PROOF that we had this as of . I'm not saying right or wrong, just what I see going on.
Many business decisions are made this way. You call it extortion, lawyers call it The System.
Shutting down free speech with violence isn't fighting fascism. It IS fascism!
Once the patents are sucessfully filed, the onus would be on to the challenger(s) to prove there is prior art. A patent holder with as much cash as Microsoft obviously has the fiscal endurance to survive many bouts of litigation...
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.
from http://www.gnu.org/philosophy/words-to-avoid.html# IntellectualProperty
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.
And herein lies the problem with dealing with business - they'll look at the cost of living without FOSS, and compare it with the cost of purchasing software produced by licensees of the patent holders. It's nothing personal, "just business". FOSS is harmed by software patents - that cannot be denied. But the same argument cannot be held to business - they'll just treat it as a cost of operating, and subsequently pay, (illegally) avoid paying, or go out of business. Welcome to The System.
Disclaimer: I am not a proponent of software patents, just a realist.
Perhaps you're right. On the other hand it could just mean that MSNBC is really an independent business-unit of the MS-corporation. If I'd be a journalist, I would like to be able to write whatever I thought was the thruth, without being influenced by my corporate employer.
It's all about cross-licensing. between them the few big companies have all the patents. they are safe with anything they develop, if one violates another's patent they just cut a deal to allow use of one of their own. trading baseball cards.
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).
True. But when you are owned by the company, there is an expectation to not make these kinds of statements. This would be similar to Slashdot agreeing with a mainstream opinion that Newsforge made up news. Even if your average Slashdotter thought Newsforge was phony, I doubt Slashdot would link to an artcile to that effect. It is just basic corperate politics, caused by a common bottom line.
-- http://thegirlorthecar.com funny dating game for guys
Submarine patents are a nasty and relatively recent development in the intangible property arena. With the sloppiness of the USPTO, it benefits corporations to spend the relatively small amount of money to maintain a technology in the application process until favorable market trends develop (by filing continuations, etc.). Then, when the application is finally approved, the "inventor" receives priority status because our system, for better or for worse, favors the first to file.
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.
Wouldn't it be a good idea to create a 'open source prior art database' ? If you have a good idea for a program or a method of solving a problem you could enter it in the 'open source prior art database' so that it is registered and can't be used in a patent anymore. Also a list of existing prior art could be stored there. . . Grtz Drz
I doubt it. Businesses everywhere would say "Fuck you, you goddamned smelly hippy bitches. Fuck you and your stupid fucking crybaby pussy-ass games. Fuck your stupid software, fuck your lameass social retard ideals, and fuck your mom. Someone get MS on the phone. Last I checked they didn't pull the plug on their customers to prove a lame fucking point. Fuck OSS and the stupid fucking Commies that run it. In the ear. With some corn."
Or something like that. I dunno.
'Standards' in computing only impress those who are impressed by things like 'standards'.
So Slashdot has to stand up for OSS even when OSS may be in the wrong? So if RMS went out and killed a bunch of babies and drank their blood, then went and pissed said blood all over the babies parent's then you'd have some funny story on te front page about RMS's crazy nutty ways, isn't he such a scamp?
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.
'Standards' in computing only impress those who are impressed by things like 'standards'.
You can't get half the Linux users to buy CD's of their favorite distro. What the fuck makes you think they're going to throw money towards the EFF?
'Standards' in computing only impress those who are impressed by things like 'standards'.
In the article it states that: There have always been patent lawsuits, stretching back to the undocumented but likely stone-age fracas over the wheel. I feel this is some attempt to hammer into the conciousness of people that the patent system and the copyright is 'natural'. It isn't, the idea of it has not existed for more than at most a couple of hundred years, it is entirely a construction of the industrialization.
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.
I do not fail; I succeed at finding out what does not work.
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.
If everyone ignores these fools then no-one will pay heed to their threats. Unfortunatly it has become a prisoners dillema and everyone wants a piece of the action. Sad, soo sad... To think we were brought up thinking that honesty and fairplay were good.. the reality of Mr. Gates: Greed is good..
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?
Umm... how do you just switch off all the software? It's not like it's your hardware that it's running on. You no longer own your free software that you gave away, and while you can just go home, it's too late to take your ball with you. It's theirs, you gave it to them, you can't just take it away because you want to sulk for a couple days. Isn't that sort of crap what people always fear Microsoft will do?
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?"
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?).
Never underestimate the dark side of the Source
Well, that's what he said, actually. Note the remarks about the GPL.
There's more than a few problems with the plan.
(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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
I do not fail; I succeed at finding out what does not work.
Running a "licensing shop" without threatening to sue people who use "licensed" technologies but refuse to acquire a license makes no sense.
but it's easier to build a portfolio of prio art for patents, already issued and otherwise, and forward it in digital form to the patent office, maybe directly to the patent examiners involved in issuing questionable patents, and in bulk form to select members of congress and the media. And keep doing it.
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.
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.