Slashdot Mirror
Microsoft's Internal Advice About Patents
BigPoppaT writes "Eric Brechner writes a best practices blog called Hard Code for Microsoft under the name I.M. Wright. His most recent post sounds like an endorsement of open source development (and does end with a call for Microsoft developers to participate in the shared source community). But even better is his advice regarding patents: 'When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section--the only section that counts--was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.' Interesting advice from inside Microsoft. I wonder if Ballmer would agree that ignorance should be 'strongly recommended when it comes to patents'?"
"Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents."
The reason why patent attorneys recommend against searching for patents is that once you know about a patent that is relevant to the one that you are filing, you have a duty to disclose it. If you fail to disclose it, there are serious consequences (e.g., invalidity, etc.).
As I understand the issue of searching for or viewing patents under the current US laws (IANAL), once one has knowledge of an existing patent then one is charged with an affirmative duty (legal speak for it's your responsibility) to ascertain the scope of the patent and avoid infringement. Now, because it frequently requires the services of a patent attorney to ascertain the full scope of the patent, which is expensive, AND the willful infringement of an existing patent (i.e. you knew about it and infringed anyway) results in much higher damages in the event of a lawsuit there are powerful disincentives, namely the two mentioned above, against searching for any existing patents. In other words, it is better from a legal and financial standpoint to remain willfully ignorant of any existing patents and negotiate a settlement when or if a patent holder shows up. This is closely related to the issue of defensive patents and maintaining a portfolio of patents merely for use as fodder in settlement negotiations.