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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.
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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.
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.
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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
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.
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