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Microsoft Won't Assert Web Services Patents
Andy Updegrove writes, "Microsoft has just posted the text of a new promise not to assert its patents with respect to 35 listed Web Services standards. The promise is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema, with two important improvements intended to make it more clearly compatible with open source licensing. Those changes are to add an explicit promise not to assert any relevant patents against anyone in the distribution chain of a product, from the original vendor through to the end user; and to clarify that the promise covers a partial as well as a full implementation of a standard. It's all part of a recent wave of such pledges made by companies such as IBM, Nokia, and Oracle, and a significant shift in how Microsoft is dealing with open standards."
Can't see any downside to them making such a pledge, so lets all be sure to be unreserved in our praise. Who knows, maybe we can encourage more of the same sort of behaviour. And not only just from Microsoft, lots of patents out there held by lots of companies, many of them potential mortal threat.
:)
Yea Microsoft!
See, my tongue didn't burst into flames or anything.
Democrat delenda est
Itsatrap
So, can somebody tell me why you would have a patent if you are not going to enforce it?
"Pay no attention to the Patent Lawyers behind the curtains...."
Beware of Sales Reps bearing gifts.
Can people highlight the reasons behind this move? I see several possibilities being: positive PR and maybe the not needing to rewrite IE again if a standards war happens. But what else? I doubt the above are the strongest motivations.
The banner is not red.
You have the killer eye fungus.
You are bleeding into your eye.
Soon it will eat your brain.
Beware of Sales Reps bearing gifts.
because its patent (on XML in this instance) was soundly thrashed about and it had to re-word it thus reducing its impact.
0 0041E39CC2571D4007DF1C8
Story on it here: http://computerworld.co.nz/news.nsf/UNID/E6D44C46
snip
The patent will no longer cover the XML file formats that Microsoft is using and therefore anyone is free to interoperate with Microsoft file formats without fear of patent litigation from this particular patent
snip
The prior art around AbiWord's handling of XML basically did for the original patent Microsoft was after. The new one doesn't really have the same issues for the industry at large.
I am a leaf on the wind
Act One
.NET stuff?"
... but to make applications that do anything at all you need our libraries. You need to buy Visual Studio and we're afraid it's a bit pricey ..."
Setting: 1990s
Developer: "Man, java is the shit!" (hey, it was the 90s, everybody spoke like an idiot)
Microsoft: "Then you'll love J++, it's more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."
Developer: "Cool, sport me a copy!"
Microsoft: "Not so fast, it's $300 a personal license."
Developer: "No thanks."
(Scene ends)
Act Two
Setting: late 1990s
Developer: "JSP's are stupid awesome."
Microsoft: "Then you'll love ASPs, they're more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."
Developer: "Cool, where do I get the compiler for VB or this
Microsoft: "Well, you can make ASPs for free and stuff and almost everyone has IIS anyways
Developer: "No thanks."
(Scene ends)
Act Three
Setting: the oughts
Developer: "XML makes my life easier but it's not standardized."
Microsoft: "Use our standard, it's the best! Uh, it's kind of sorta free. You can edit it easy and use it. *cough* but we've got some patents *cough* so go ahead and use it."
Developer: "Wait, what was that last part?"
Microsoft: "Aw, christ, well, to stop everyone from slowly eating away at our dominant market, go ahead and use it. We promise not to sue but no backsies on these patents!"
Developer: "What the fsck, Microsoft, get it through your heads, we just want to get along. Stop charging us for everything (even standards). Change your business model."
(Scene ends, developer storms off to go play nice with the Sun & the rest of the world)
My work here is dung.
Maybe they should sign them over to a 3rd party such as the FSF instead of making nonbinding promises.
As much as software patents may be a horrible idea, and as much as people here generally hate Microsoft, maybe this is a *good* step? The company has pledged publicly that they won't actually assert their patent rights... and since these are patents we're talking about, it means that noone else can either.
Maybe it's just the sort of protection that the open source movement needs so that we *can* innovate without having to jump through a bunch of hoops or worry about facing legal action?
So nobody else can patent the same thing and then sue microsoft for infringement on something they developed. It's a CYA (cover your a**) patent, as many are nowadays.
I think a lot of companies (like the companies mentioned in this article) obtain patents but don't hire patent trolls to go about flexing their lawsuit muscles.
What's the point of the patent? Well, especially on standards, you get to maintain complete creative control over the direction of the standard and it's kind of a safety to always make sure everyone depends on you.
I also think that companies might consider patents as an asset when they calculate their balance sheets. I have nothing to back that up but since patents are continually bought and sold (see Intellectual Ventures) so they must be assets to some degree. This looks very good to investors & stockholders.
Afterall, Microsoft might not use these patents but what happens if they sell them for a huge chunk of change after everyone is using the technology? Massive lawsuits?
My work here is dung.
Nice. A bit of assurance from a voice I trust. I can sleep well now. Good night.
Love many, trust a few, do harm to none.
I read your post as
Billy: Come over here.
Me: No! You'll hit me!
Billy: No I won't.
Me: Yes you will.
Billy: No I won't, I promise.
Me: Uh, okay.
Billy: (PUNCH!) Sucker!
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
What legal binding do these "pledges" have? Why not back up the pledges by just releasing the patent into the public domain?
--
make install -not war
It's a positive step, because it shows they can act rationally, having had their share of trouble from software patents. It also goes to show that, if software patents are bad for Microsoft, they should be considered generally as a Bad Thing for the software business in general.
There is a general attitude in Washington, sponsored by the ??AA, that any law that creates more "intellectual property" is good for business. Microsoft is sending a message that it ain't necessarily so.
Two words: promissory estoppel.
IANAL. I'm not even sure I spelled either word right. But the thing is, legally, if you make a promise, and I act on that promise, you can't turn around and sue me for acting on your promise.
OK, it's a bit muddier than that. You can still sue me. Anybody can pretty much sue anybody for anything. But you can't win the lawsuit, and losing can be painful enough that most people don't play such games.
It's actually even muddier than that. You can't win the lawsuit, unless there's something else going on, like I'm also infringing on some other patent that you didn't promise not to sue on. So don't blindly take this and run without actually understanding what Microsoft said. It may go less far than you expect. But that paranoia aside, it's actually a really cool thing for MS to do (and I don't say that very often).
It's not patent hogging. Companies today have to apply for patents, even when they don't plan to enforce them, for purely defensive reasons. If you don't apply for the patent first, someone else will come knocking at your door who did.
The thing about this article that I don't understand is that the part about it being "a significant shift in how Microsoft is dealing with open standards." (emphasis mine) AFAIK, Microsoft has never sued anyone for patent infringement, and has an unwritten policy against it. The only difference here is that they are writing it down. Even the post states it "is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema". So again, how is this a significant shift?
> Nice try, as of this summer it's free.
.NET was around in the late 90s?
It's been free for ages.
>Notice how the setting to that scene was the late 90s.
>They're a good decade too late.
Too late for what? I thought Microsoft was the most successful software company of all time?
Furthermore, IIRC, patents come with an affirmative duty to enforce the patent; failure to do so can lead to loss of the patent. So a pledge not to "assert" (i.e., enforce) the patent (contrary to, say, an open public conditional offer of a free license to use the patent) might well jeopardize the patent itself.
Of course, they said nothing about using the patents against their competitors or vendors or users of competitor's products. So what have we gained? They won't sue you, as long as you use or distribute _their_ products. Well, thank you very much. The chilling effect of software patents on the industry is still as strong as ever.
Please correct me if I got my facts wrong.
The Visual Studio Express editions have been free since mid-2005, originally as a limited free-for-1-year program, that was extended to be free forever in April of this year.
I've heard of "internet time", but calling that "for ages" just seems, well, a bit odd, even so.
Its actually quite a bit muddier than that. Under the doctrine of promissory estoppel, the promise is only enforceable where reliance on it is reasonable, and where no other means to avoid injustice is available; exactly how that works out in any particular case can be murky. Here, I can see Microsoft not being allowed to recover damages in a patent, and maybe being unable to prevent continued distribution or use of existing product using the patented technology, but being allowed to forbid development of additional technology.
Further, once the promise was publicly revoked, further reliance on it would no longer be reasonable. The claim that the promise is "irrevocable" probably has no weight, since it is completely gratuitous.
if they're not intending to use them, why did the get them in the first place? Its like someone pointing a gun at your head but saying "I won't pull the triger, honest".
That's completely false... you're thinking of trademarks. There's no legal obligation to enforce a patent.
instead of a pledge. A pledge is all nice and pretty, but a good 'ole legally binding license would be even better, and would remove any doubts (since it wouldn't matter what MS decided to do later on).
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
Also, if there is similar prior art, then getting a patent shows that yours is sufficiently different to not infringe.
Engineering is the art of compromise.
I know its true of trademarks, but I wasn't thinking of them. I'm pretty sure its true of patents as well.
The whole idea behind a patent is to give the patent holder an amount of time with which to make money off their invention. Microsoft patenting web elements then not enforcing the patent is just a bloody waste of time.
The only other reasoning I can see behind this is so they can say 'yeah we did this'
You seem to know your stuff, judging from your other posts on this thread ... but the only affirmative duty I can find with respect to patents has to do with prior art searches and "due care" to not infringe other patents when one has "notice" of a patent.
... though I suppose I could do better than using Google as my law library :)
Not enforcing a specific case of infringement might entitle the defendant to equitable relief (laches), and I'm also fairly sure there's a duty to mitigate damages before seeking relief (not sure what that's called, now you really know IANAL). But I couldn't find any other affirmative duties for patents
Done with slashdot, done with nerds, getting a life.
the promise is only enforceable where reliance on it is reasonable
I'm trying to think of circumstances where reliance on a promise would be found to be unreasonable. Do you have a case that shows this? I suspect that if reliance was unreasonable then it wasn't a real promise in the first place, such as when the person has "promised" something over which they have no control or has used the word in circumstances where it should not be expected to be taken seriously (such as in a campaign for political office).
I know its true of trademarks, but I wasn't thinking of them. I'm pretty sure its true of patents as well.
It is not, although in the right circumstances, laches might apply (references can be found in other comments to this story).
Actually, two different words: Unilateral Contract.
Microsoft is entering into an enforceable contract. This isn't grey area. Anyone who accepts this offer by building an application that utilizes the patented technology is untouchable. This is well established law.
Covering your ass is much more cheaply established (not to mention more trusted) simply by publishing your idea then citing it as prior art.
Starbucks, Harbuckle of Breath.
I'm not seeing this as a saw-the-light moment w/r/t "intellectual property". I see it as a fairly simple maneuver to make sure that no one hesitates to implement XML the way Office 13 does.
My turnips listen for the soft cry of your love
the .net compiler has ALWAYS been available for free as part of the .NET SDK. you don't get Visual Studio with it, but you can compile and make your own .net applications for free, without paying for any software.
A good reason to patent something you "invented", even if you have no intention of enforcing them yourself, is to prevent some small company that does nothing *but* patent from patenting your "invention" and coming after you. Even if you had "prior art", the case costs money to actually win, so you might feel compelled to settle to make it go away.
Microsoft normally doesn't sue over patents, but they're the biggest target for these patent-specialist companies (since MS has the most money, and potential suers think MS would be more likely to settle since they can do it without missing the cash), so they patent their stuff for their own protection.
-- "I never gave these stories much credence." - HAL 9000
It's like telling a dog, that doesn't want a collar and chain around it's neck, "Here doggie, doggie, let's put this chain on your neck, and we promise we ain't gonna yank it! Good dog!" What's wrong with dogchains if there is a promise they will never be used and abused? They are just like not having a collar around your neck, after all, the covenant is legally binding unless - unless, aha, I knew there was a catch! - unless you inspect the small print, which is subject to interpretation by lawyers in a courtroom at some later time. But baby steps first, let's get the collar on your neck, today, let's get over that step first, then we deliberate over whether we have the right to yank it or not. OK? Com'ere doggie! Good daaawg!
Uhhhh, actually, there is a legal doctrine called "reliance". If somebody says "I won't do this even though the law lets me", and you rely on their promise, then they have very little chance of successfully doing it. The judge will throw their case out of court so fast it will go into orbit.
Don't piss off The Angry Economist
Interesting...what do you see as the consideration from the acceptor of this unilateral contract?
If you don't know where you are going, you will wind up somewhere else.
I'm also fairly sure there's a duty to mitigate damages before seeking relief
It's called - get ready for this - "mitigation!"
Seriously, though, I Am Not An IP Lawyer, but I am an attorney who sat through a couple of IP law classes, and I believe that you are 100% correct - there is no duty to defend a patent; of course this is not legal advice.
If you don't know where you are going, you will wind up somewhere else.
...to be one day reading a joint press release from MS and IBM and Apple and HP and a large, large list of other major companies all holding a news conference where they decry software patents and business process patents as a really bad idea, and call on Congress to just change the law, and in the meantime they promise to not persue a single additional one. *That* would be impressive and give a better sense of confidence and true intent.
Until then, it is like the global status of nuclear weapons. Some nations have them (but they won't give them all the way up nor allow any smaller nations to have them), some nations don't have them but apparently want them, there has been some noise about never using them (again) or reducing the total numbers,etc, maybe all the way to "none", but until the "no nukes anyplace anytime for any reason" process is transparent and open to anyone anywhere and any time to inspect and verify-sorry, *no trust*. I trust none of the above with nuclear weapons, to never be dinks with them. I trust none of the above with software or business process patents to never be dinks with them. The old adage is still true, talk is cheap.
As in, public-domain them?
Because I don't like trusting the FSF with so much. I can understand the GPL being the way it is, but really, how long can it continue to be the FSF?
Actually, I believe this is why some software works the way it does -- Gentoo asks that you sign over the copyright to any ebuilds you submit to the Gentoo Foundation. That way, if they want to change the license of the distro later, they can do it. I like this better -- right now, Linux can't switch to the GPLv3, because everyone owns their own contributions, and they included a note that said "GPLv2, but not later", whereas most GPL'd stuff is GPLv3 or later. A single "no" from a developer would wreak havok if they ever attempted it.
Thank God they put in that clause, or the FSF could wake up one day and release the GPLv4, which says "This code is now completely public domain." Or something like that. No, I don't like the single point of failure. The upgrade clause is nice, if we have a mechanism whereby a few people can actually switch to a new license.
At least that way, if Gentoo decides to relicense everything as proprietary, we still have Ubuntu -- and anyone can fork the Gentoo code anyway.
Similarly, I would not like the FSF to be able to go around and sue the shit out of everyone infringing on these patents. Just have MS sign something that says "These patents are hereby public domain..."
Don't thank God, thank a doctor!
I'm actually pretty sure of this - it's not true of patents.
Yes, thank you, I went to law school. My point is, what is the "performance" that is being rendered by the offeree in this scenario?
If you don't know where you are going, you will wind up somewhere else.
If a competitor uses any of these patents, Microsoft is not going to sue. No requirement to license or brand as a microsoft product or anything. The only catch is if you sue Microsoft, the promise goes away and a swarm of lawyers will start collecting more money.
-------
In Soviet Russia, patent sues you!
The implicit message conveyed is that Microsoft has patented all these standards, giving the impression that all these public web standards are thanks to the innovation of Microsoft. They have contributed to ssome of these (most notably the SOAP specification), but web services are not just due to Microsoft. Furthermore, having contributed to SOAP as a public standard in a W3C process should certainly have prevented them from being able to patent it (or am I wrong?). SOAP is, however, included in the list of 35 software patents which are not enforces??? I would think that the W3C would have a policy that if a company contributes to a public standard and then patents it, that that company would be prevented from participating in any other community processes. Does anyone have the actual list of patents?
I would love Microsoft to make this statement about their .NET related patents. C# is a very good language, and the .NET framework is excellent. I would love to use Mono to make cross-platform C# applications, but the fear of Microsoft striking down and killing various implementations of the runtime via patents is too dangerous.
I think that the significance of the shift centres around certain caveats in their previous promise, which were perceived as being restrictive in particular to open source development. The change to being "totally open" (or disambiguating their previous wording as regards this misunderstanding, which seems more likely to me) is probably what is being referred to.
I think that publically stating that they intend not to sue, rather than having an unwritten rule, is a significant shift as well — the case of this with the Office XML formats, the covenant was for that single format because of political reasons, certain clients demanded that it be the case. Following this policy through more products is significant in a way, too.
Writing code that uses the patents?
Its not a normal unilateral contract because there is no consideration from the non-Microsoft party; which is why promissory estoppel (which substitutes for consideration) is a key issue.
Free licenses would be better. Then the promise couldn't be changed in the future.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."