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."

Comments

Lets be sure to praise em for doing good

[jmorris42]

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. :)

Re:Lets be sure to praise em for doing good

[Kesch]

Microsoft irrevocably promises not to assert...

It does appear to be legally binding by the tone of the analysis in the TFA.

You pretty much automatically have been granted a license to the listed patents and the only term of use is that you lose the protection if you try to file a patent infringement lawsuit against Microsoft concerning the standard.

Re:Lets be sure to praise em for doing good

[TekPolitik]

The question of whether it raises an estoppel (presumably, here, a promissory estoppel) depends on, among other things, the degree to which the reliance by the unlicensed user of the patent on the pledge to not enforce the patent is "reasonable", as well as consideration of whether injustice can be avoided by any other means than enforcing the promise.

As a statement of the law this is spot on, but it would have been more helpful to the person asking the question if you had applied it to a sample set of facts.

Note the requirement for reliance - this means you must at least have been aware of the promise. You (or at a minimum somebody you claim through) must have then acted, in reliance on the promise, in such a way that you would suffer a detriment if Microsoft resiled from the promise.

If, being aware of the promise, you produce any non-trivial amount of work depending on the patents, chances are that a court is going to be willing to impose a promissory estoppel. In the case of GPL software, somebody, somewhere is going to rely on this promise, and a consequence of this is there will be GPL software out there that effectively gives you something that should support an estoppel. It's going to be very difficult, if not impossible, for Microsoft to renege on this.

It is fairly safe* to take them at their word here.

* - usual disclaimers apply.

Dialog

[eldavojohn]

Act One

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 .NET stuff?"

Microsoft: "Well, you can make ASPs for free and stuff and almost everyone has IIS anyways ... 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 ..."

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)

Why not?

[VanessaE]

Why keep the patents if you're not going to use them? It's just blatent patent hogging.

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?

Re:Reminds me...

[Archangel Michael]

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!

Breakable Pledges

[Doc Ruby]

What legal binding do these "pledges" have? Why not back up the pledges by just releasing the patent into the public domain?

Good, positive attitude

[mangu]

Microsoft's position is that of someone in a warehouse full of gasoline cans. Let's not start throwing lighted matches around.

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.

Re:motivation behind this?

[rifftide]

Historically, Microsoft has not been a big proponent of winning through patents, either by preventing competition or extorting usage fees. They like to win in other ways. The big software houses see Web Services as the key towards the next great era of business software, and they all like their chances. But that only happens if they can avoid getting stuck in a mire of standards dueling and IP litigation (see: Blu-Ray/HD DVD).

Notice that the pledge includes the standard defensive measure - if you sue Microsoft for infringing one of your patents, it's void. But it was carefully crafted so that only Microsoft code used to directly implement one of the specifications is covered by the defensive clause - not all of Windows and MS Office for example. That's perhaps the most impressive part of the pledge.