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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.
So what exactly do they do with these software patents? what about prior art??? doesn't that apply to software patents? Also could I just like license a certain type of for loop or something and charge for it? It seems to me that this is all just bunch of corporate crap talk that will eventually not get anywhere and you'll only be able to get the patents on something trully revolutionary and quite unique.
Well, all I can say, for good or bad, is that litigation will work things out. Unfortunately, GPL will be more defined through the courts, when the fat-cat lawyers argue it out. It will only become one of the big boys when things are sorted out in court. I hate fawking lawyers, but they seem to define business plans these days, so let's rock.
Kip Hawley is an idiot.
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
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.
FOSS afficionados should organise themselves one of these days and switch off all "infringing" software on the Internet for 48 hours. Just flip the switch and wait. I somehow suspect that the matter will suddenly become much more negotiable.
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.
From the article: The overtaxed U.S. Patent and Trademark Office often grants absurdly broad patents that reflect little actual innovation. (For example, Microsoft owns a patent for activating a program on a handheld device by holding a button down for several seconds).
Is it just me, or is someone at MSNBC got a hate on for Microsoft? First the reccomend Mozilla and now they slam them for patents. I am guessing there is some behind the scene tension there.
-- http://thegirlorthecar.com funny dating game for guys
The article says:
"Marshall Phelps tries to dispel the notion that Microsoft is preparing a patent assault on open-source software. He notes that at IBM he never initiated a single lawsuit"
Will this mean that the 27 seven unidentified patents that Open Source Risk Management have found can just remain then? Maybe not. If those 27 patents are identified under a contract of no disclosure to key kernel developers, will the community be able to implement workarounds before the suits starts to rain?
I would be very interested in knowing who else owns a patent that yet have not been tested in court that covers code in the Linux 2.4 and 2.6 kernel-series. Without knowing if they have been tested in court or not we will just have to stick with the numbers made public then: IBM has 60 patents, Microsoft has the 27, 20 has HP and 11 goes to Intel. That leaves us with just above 160 other unidentified patents to deal with.
Microsofts 27 patents are most likely the worst here, but have they been tested in court? Things like their silly patent for "activating a program on a handheld device by holding a button down for several seconds" will most likely not pass any court, or I for sure hope not.
I think that the SCO-case will set a precedence so that other stupid claims are thrown out without years of countersuits and motions in all directions. Lets atleast pray it does. I will.
"-Who said sit down?!"
-- S. Ballmer @ MSDC 2003.
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.
When SCO was Caldera (or whatever the convoluted line of ownership) they were more or less non-evil. Then new owners came in and made it all evil.
Microsoft, even granting the somewhat tenuous proposition that they're doing this for good, will soon be a different set of people. You know. Darl McBride junior and his buddies.
So okay, Marshall, I'm sure you're a good guy and all, but I'm not giving you kudos for playing along with an evil, broken system "for good." I'd Microsoft spent its seven hundred godzillion dollars helping bring about reform in the patent system and changing its abuse-of-monopoly behaviours.
No offense.
fifth sigma, inc.
While reading the article, two phrases struck me: a research group is prepared to list 283 patents violated by Linux; and half of all patents are defeated in courts. (I believe the latter is half of all challenged patents.)
Would it be difficult for an organization, say the EFF or the GNU foundation, to set up a specific fund for collecting donations to be used only to defend patent law suits?
Imagine the war chest available if half of the Linux users donated $10 to this fund... And it'd be tax deductable in the States, too!
There's so little difference between politics and jihad lately...
After all this complaining (that I do too) about the patent office, it struck me that some companies involved in the current patent frenzy know the bottom is going to drop right out of it eventually. They're seeing a way to parlay quick cash and partnerships. The more ridiculous patents kind of remind me of the empty promises of many .com companies - but now many of these "innovators" have ridden that wave...
US Democracy:The best person for the job (among These pre-selected choices...)
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've got loads of GPL'ed stuff I've not given away to anyone. You don't have to give it away even if you're a developer - you're perfectly entitled to keep it in-house. However, if you *do* give it away, you have to make the source available.
Apart from that, the GPL only addresses copyright. If there are patent issues, you have to take care of those separately before you can use the code.
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.
The patent holder can license their implementation however they choose. It is perfectly legal to expressly say that your code may be used by GPL applications as a shared library, the same way that LGPL code can be used by commercial source.
Otherwise you'd best get rid of the NVidia drivers, the commercial databases, and every other non-GPL product that runs on Linux. That's not the intent of the GPL, never was, and it's nothing but Microsoft FUD bolstered by uncertain IP laws which suggests otherwise.
The GPL is about ensuring that if you use GPL code for your work then it must be licensed under the GPL, not that the GPL can't use any libaries which aren't expressly GPL'd. Contrary to any fantasies the full-bore GPL zealot might have, there is no legal way you could do that, and it would be against the very spirit of freedom that led to the creation of the GPL.
Also note they are not talking about refusing to license the IP for specific projects, but to the distributor of the source. In other words, they've decided to play their patent portfolio as a market-blocking threat the same way they yanked all the incentives from hardware manufacturers who dared ship something other than Windows.
As far as I'm concerned, Microsoft has just expressly stated their intent to maintain monopoly profits and control through IP barratry and by locking out any company which dares support or distribute GPL software.
If that's not a RICO violation, I don't know what is, and it's well past the time we stopped putting up with this crap as an industry. I greatly look forward to Sun, IBM, and every other IP holder banding together and teaching Bill that he does not rule the world, no matter how much he'd like to.
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.
Then when Microsoft (or SCO, or someone else) cries about OSS, there's another organization on the other side of the courtroom holding some cards.
How about it, EFF! Start a patent and licensing division! QUICK! (EFF, or one of the Open Source Groups... someone do it, pleeeeeeease!)
I've got loads of GPL'ed stuff I've not given away to anyone. You don't have to give it away even if you're a developer - you're perfectly entitled to keep it in-house. However, if you *do* give it away, you have to make the source available.
Shouldn't that last line read "However, if you *do* publish the binary, you have to make the source available." ?? IIRC You don't have to give away (gratis) the product to be tied to making the source available. If the binary is not for internal use only (i.e. you're selling it, licensing it or giving it away) then the source must be also made available, and for no more than the costs incurred in distributing the source.
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?
"There have always been patent lawsuits, stretching back to the undocumented but likely stone-age fracas over the wheel."
"Ugg just invent wheel. Come see, Ogg."
"Ugg do good. Can Ogg try?"
"Ugg have patent on wheel. File proper papers and submit proper licensing fees."
"But paper not invented yet, and Igg has patent on money!"
"So? That Ogg problem, not mine..."
This is how the patent system was first envisaged as working. Say you're a penniless inventor. You're skint because you've just spent your life savings developing your latest widget which will change the world as we know it. The only one in the world is right there in your workshop.
Now one way that you can make money out of your invention is to persuade a backer to lend you enough money so you can afford the tools and materials to start building it. But in order to do that, you need to convince your sponsor -- who is in all probability a banker or financier, not a scientist or an engineer -- that you can earn enough money by selling your invention to eventually pay them back, and that requires either an unparallelled degree of chutzpah or some kind of official document stating the worth of your invention. Another way is to get someone else to build your invention for you. But in order to do that, you will have to tell them how to make it -- and once they know that, they can cut you out of the loop. They have the invention, they can afford to make and sell it, why should you get anything?
The patent system was set up to solve both these problems. You demonstrate your invention to a trustworthy body, and say that you are prepared to share it with the world at large; and in return, you are given a copy of an official letter which describes it in full and states that you are the true inventor. The original is held in a library where anyone can look at it. This letter also grants you, for a limited time, exclusive control over the commercial application of your idea. Now you can seek assistance, confident that you will be able to earn the true worth of your invention: a group of experts have attested to the fact that it really works (so nobody can think you are trying to rip them off with vapourware), and nobody else can claim it as their invention and rip you off. Then, after you have had a fair chance to get rich off your invention, it gets formally released so everyone can have a bite of the cherry -- which is your little way of saying "thank you" for all the inventions and discoveries which have come before and from which you have already benefitted; such as fire, tools, agriculture, sanitation, electricity, and so forth.
If your invention is a piece of software, which is something which can be reproduced at no cost, then you are by definition not too poor to make it. But, additionally, some things should never be patentable. Mathematical processes, for one. What if integration were the subject of a patent claim? Integration is a mathematical concept that crops up time and time again in the real world. Would you have to pay a royalty every time you poured a liquid from one container into another? What if subtracting one were patented, and the patent holder refused absolutely to licence it? Would adding one and subtracting two be permitted as a work-around? Software is just a formalisation of a mathematical process.
The most fundamental thing wrong with the US patent office today is that patent applications are not being properly tested. I believe firstly that the requirement to produce a working prototype should be reinstated. A patent application not supported by a prototype is nothing more than a work of science fiction -- and in any case, if you are not good enough to build a prototype, then perhaps you do not deserve to be recognised as an inventor. The question of licencing needs to be addressed -- I firmly believe in non-discriminatory licencing, in other words that a patent should be licenced to everybody, and everybody for the same price, or nobody. Additionally, a procedure needs to be created for verifying that an invention is original -- and for dealing with exceptions. Since this is an example of civil rather than criminal law, the terms "innocent" and "guilty" do not really apply, so the question of burden of proof is a thorny one. Finally, there need to be clear and unambiguous rules about what can and what cannot be patented; and, for the inevitable case of an invention which is so new that none of the existing rules can be applied to it, why.
Je fume. Tu fumes. Nous fûmes!
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.
Worth noticing. They can just deny everything in the article. "The journalist made it up".
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.
First, you stated that the evidence speaks for itself, yet you siad that there is no evidence, so how can the evidence speak for itself.
That said, there are *several* rational explanations for the results you spoke of: For example, it is possible that Microsoft has increased the number of patents that it is submitting, Microsoft has obtained more skilled attorneys to aid in its patent prosecution.
None of these rule out the possiblity that people have been paid off, but they are all rational explanations. I would argue that they are generally more rational than the explanation that someone was paid off and somehow that person was able to influence a plurality of patent examiners. All this while covering it so carefully that none of the Microsoft watchdogs were able to detect the scheme.
I'm not saying that Microsoft is altruistic and right, but using circumstantial events as evidence just doesn't convince me. Everyone is entitled to their opinion, but there are too many people willing to jump on the Microsoft is evil bandwagon.
Running a "licensing shop" without threatening to sue people who use "licensed" technologies but refuse to acquire a license makes no sense.
Besides, the GPL doesn't lay down the required mechanism for obtaining the source code. I could publish a binary version and say, "for the source code, you must hand-deliver twelve 5.2" floppy diskettes to an address in New Zealand. It does meet the criteria listed. There are plenty of ways to abuse this that are far worse than simply not publishing your source code until the final release when you've had time to delete the swear words from the comments.... :-)
Check out my sci-fi/humor trilogy at PatriotsBooks.
Isn't there an argument to be made that if a technique is implemented in Open Source software, then it is obvious?
Doesn't an ordinary practitionar of the art coming up with a patented solution independent of the patent refute word-for-word the non-obvious requirement of a patent?
If not, why not?
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.