
Azure Intellectual Property Advantage - taspeotis
https://azure.microsoft.com/en-us/overview/azure-ip-advantage/
======
jacquesm
Microsoft.

What really surprises me is that so many people are willing to forget that
this is the company that bankrolled SCO in their lawsuit.

For that reason alone the tech community should shun them. But just a few
short years later and a couple of open source releases and we're supposed to
believe it is all so much better now and the Microsoft of old should be
forgotten.

Thanks, Microsoft for reminding us of your true colors.

In case you have trouble parsing this announcement: the 'between the lines'
FUD here is that when using other cloud providers you could be sued by
companies that have these scary things called patents in case it turns out you
ar is infringing on any patents (nudge nudge, wink, wink, of course you are).
But come and stay in my house and I will protect you against these nasty
people.

Cue IV starting lawsuits against parties that in a pitch between Azure and say
GCE or AWS decide to go with the latter?

~~~
mmalone
I feel like I'm starting to sound like a shill in this thread... I don't work
for MS, don't use Azure, and am generally considered an "Apple fan boy." So,
with those bona fides out of the way... I disagree.

The reality is that this is not FUD. People actually _are_ sued on a regular
basis for bullshit like this. Microsoft is indemnifying Azure customers and
giving them free access to their patent portfolio for defensive purposes. This
should _reduce_ patent suits, which is a _good_ thing.

Google and Amazon should follow suit.

~~~
jacquesm
No, Google, Amazon _and_ Microsoft should push for patent reform. Not use
their arsenal of patents as a protection racket. And because of IV Microsoft
is - indirectly, at just about one plausibly deniable arms length - one of the
bigger abusers of patents in this way.

One way in which they could have done this that would be clean would be a
blanket statement that would cover parties no matter where they are hosted. To
make this a competitive advantage for Azure is fairly disgusting.

Another thing they could do is assure the world without any weasel words that
Microsofts patents will never again be used to seek rent on innovation, or
better yet, to place them all in the public domain.

~~~
mmalone
They can push for reform _and_ provide legal protection like this. They're not
mutually exclusive.

I'm assuming by IV you mean Intellectual Ventures..? Are they tied to
Microsoft? I thought they had _sued_ Microsoft..?

~~~
jacquesm
> Are they tied to Microsoft?

[http://techrights.org/wiki/index.php/Intellectual_Ventures](http://techrights.org/wiki/index.php/Intellectual_Ventures)

[http://techrights.org/2014/12/16/trolling-not-working-
out/](http://techrights.org/2014/12/16/trolling-not-working-out/)

~~~
mmalone
Ok, it was started by a former MS exec and funded by Gates... that's shitty,
but Microsoft has lots of former employees and I'm sure Gates invests in lots
of things. For all we know it was a family office investment that he wasn't
even aware of... or the dude was a friend or something.

Microsoft doesn't have a stake in the company nor do they provide the company
with any assistance..? Unless there's more to the story I think it's kind of a
stretch to say that this is a Microsoft operation. According to Wikipedia
they've actually _sued_ Microsoft.

~~~
jacquesm
> According to Wikipedia they've actually _sued_ Microsoft.

That is not what I read there. What it says is they _raised_ money from
Microsoft, that's something else than suing Microsoft.

[https://en.wikipedia.org/wiki/Intellectual_Ventures](https://en.wikipedia.org/wiki/Intellectual_Ventures)

Can you point out the exact paragraph that you feel describes IV suing
Microsoft?

~~~
mmalone
Upon closer inspection it appears that you are correct. I interpreted "raised"
as "extorted." That still may be the case (the cited source is a dead link)
but I think you are right... particularly since some of the names listed are
venture firms.

Whatever the case, IV is quite an enigma... founded by the creator of MS
Research (which is a great group), funded by Reasonable People, but apparently
sketchy as hell. I'm intrigued and will definitely be digging deeper into
their story. Thanks for bringing them to my attention.

~~~
thanksgiving
People who like Bill Gates believe it is a bad idea to volunteer your time. If
you can earn $60 an hour, you should earn that $60 doing whatever you have to
do so thus way you can later pay for four hours at $15.

I don't know. I mean it looks better than earning that $60 and not putting
towards a charity?

------
nohat
Is it just me or is this actually genius? Mutually assured destruction has
been the name of the game for big companies for a while now, but that wasn't
practical for small players. If Microsoft is willing to take small companies
under its umbrella, it could be quite effective and helpful. Seems like what
they actually do is provide you the opportunity to buy a hand selected legal
weapon, but that threat may well make azure a little safer for small companies
and startups. Will Google and Amazon feel pressured to follow suit?

Of course this doesn't work against patent trolls, because they have no
products to sue over. As long as Microsoft doesn't start threatening to sue
companies that use aws or something, I have to applaud this move.

~~~
2_listerine_pls
They don't have to sue you overtly.

Think of Intellectual Ventures as an example. IV licenses patents for
litigation but pretend to be inventors. I say pretend because most of their
revenue comes from litigation, while publicly promote their inventions. If
anyone is interested, there is an old, but relevant, NPR podcast about them
and the use of shell companies to hide their identity.

I believe reading that MS has a stake on IV, but I can't find anything on
that. IV founder was MS' CTO. It can also be done covertly.

Oh...and just found this:

[https://www.google.com.mx/url?sa=t&rct=j&q=&esrc=s&source=we...](https://www.google.com.mx/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0ahUKEwjMotbBz9zSAhXIiSwKHSNdAloQFgg8MAQ&url=http%3A%2F%2Ftechrights.org%2F2017%2F02%2F28%2Fxinova-
is-invention-development-fund%2F&usg=AFQjCNGqM0QJTykTpaWkw9xe35MTWOwAbQ)

------
skywhopper
This is proof of the utter emptiness of the fiction of intellectual "property"
as a source of innovation. IP is not a source of anything but overhead. You
pay a baseline of insurance (or "protection" depending on your POV) to fend
off lawsuits just to be able to do your work. It's rent-seeking, but the
genius is, it's not rent-seeking over limited resources like land or resource
rights, it's rent-seeking over totally artificial unlimited source of nonsense
BS that you can never run out of. It's just a tax on existence, but it's not
going into anything useful, just into the IP industry's pockets.

~~~
threeseed
This is simply not true. IP is a vital and important part of business that
protects entrepreneurs the most. Sure there is a huge raft of reforms that
need to be untaken and software patents have questionable utility but we
shouldn't throw the baby out with the bathwater.

I still look back to the Dyson lawsuit with Hoover as example of why we need
patents and IP protection:

[http://www.telegraph.co.uk/news/uknews/1368860/Dyson-
cleans-...](http://www.telegraph.co.uk/news/uknews/1368860/Dyson-cleans-up-in-
patent-battle-with-rival-Hoover.html)

~~~
jacquesm
I see some minor differences between Vacuum cleaners and software.

~~~
andrewflnr
Indeed, but the comment to which GP was responding made no such distinction.

------
aub3bhat
Latest innovation in Cloud Computing! Frivolous Lawsuit Defense As A Service.

I think at some point the archaic IP laws in USA would mean that deployment of
cutting edge technology ends up happening in China. This is already happening
in Shenzen.

[https://youtu.be/SGJ5cZnoodY](https://youtu.be/SGJ5cZnoodY)

------
mark_l_watson
I don't use Windows, just macOS and Linux servers so I claim some
impartiality: I can't believe the hate Microsoft is getting in this thread!
They are addressing a very real problem that small companies face and offering
a free service on top of normal use of Azure.

Microsoft is a very different company than they were in the days when they
supported SCO's lawsuits as an attack against Linux. Except for some Windows
10 privacy issues, I personally give the 'new' Microsoft fairly high grades
for their current business models.

~~~
flyinghamster
IMO, their willingness to use patents as a protection racket, and their
conduct with Windows 10, shows that their true colors haven't changed one iota
from the SCO days. The "rainbows and unicorns and open source" schtick is
great for getting our guard down, but when push comes to shove, it's Embrace,
Extend, Extinguish.

------
trome
So basically the same rent seeking behavior Microsoft applied to Android
vendors, now applied to the cloud? Except instead of paying $20 to $40 per
handset to MS, you have to use Azure and deal with the resulting mess.

------
DarkKomunalec
Quoting
[https://en.wikipedia.org/wiki/Software_patents_under_United_...](https://en.wikipedia.org/wiki/Software_patents_under_United_States_patent_law)
:

" On June 19, 2014 the United States Supreme Court ruled in Alice Corp. v. CLS
Bank International that "merely requiring generic computer implementation
fails to transform [an] abstract idea into a patent-eligible invention."
[5][6][7]

The ruling continued:

[...] the mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention. Stating an abstract
idea “while adding the words ‘apply it’” is not enough for patent
eligibility.[] Nor is limiting the use of an abstract idea “‘to a particular
technological environment.’”[]. Stating an abstract idea while adding the
words “apply it with a computer” simply combines those two steps, with the
same deficient result. Thus, if a patent’s recitation of a computer amounts to
a mere instruction to“implemen[t]” an abstract idea “on . . . a computer,” []
that addition cannot impart patent eligibility. "

So just how broken and captured are lower US courts that, despite a supreme
court decision invalidating software patents, this kind of extortion
continues? Are software patents only invalid for those who can afford to
litigate all the way to the supreme court, and the lower courts are ignoring
this ruling?

~~~
icebraining
IANAL, but from what I understand, _Alice_ didn't invalidate software patents.
In fact, it's generally agreed that they tried very hard not to rule on
software patents. All they did was say that a generic abstract idea (like
"escrow") doesn't suddenly turn patentable just because it may run on a
computer. You need to have an "inventive concept" to qualify.

~~~
shshhdhs
Reminds me that there is a "shopping cart" software patent. Would this be
invalidated by _Alice_?

~~~
icebraining
That particular patent was killed because it was even less innovative, as
CompuServe Mall already had shopping carts in a computer before.
Unfortunately, it had to go all the way to the court of appeals, and only
thanks to Newegg choosing to fight it rather than pay them off:
[https://arstechnica.com/tech-policy/2013/01/how-newegg-
crush...](https://arstechnica.com/tech-policy/2013/01/how-newegg-crushed-the-
shopping-cart-patent-and-saved-online-retail/)

------
shmerl
So, now MS starts using their patent arsenal, as an incentive for their users.
I.e. "come use us, we have some lethal weapons in stock, in case of threats
we'll rent them to you". This doesn't smell good at all.

How about remembering, that MS are themselves one of the major patent
aggressors and proponents of patent arms race?

~~~
mmalone
That may have been true in the past but, as far as I know, Microsoft hasn't
been that way for years.

Every large tech company has a patent portfolio. Hell, Google bought Motorola
to get their patent portfolio to use defensively in suits against Android.

In my opinion companies should not be punished for using patents defensively.
It's really the only viable option outside of a major legal change. So, I
think Microsoft giving other people access to their portfolio for defensive
purposes is a good thing. It should _reduce_ the amount of patent litigation.

~~~
shmerl
There is a difference between only using them defensively, and using them for
protection racket. As far as I know, MS still do the later (especially with
Android).

They also like standards poisoning with their patents, and then collecting
money from everyone who is forced to use that. Example - exFAT widely used on
SD cards. Why didn't everyone use some free filesystem? Because MS.

~~~
justin66
> Why didn't everyone use some free filesystem? Because MS.

When you look on Wikipedia, there are like a dozen goofy file systems that a
developer could use for flash storage. They could sort through all that or,
you know, they could just use FAT, like everyone has done forever.

I wonder if the open source world's perpetual inability to get behind one
standard hurt them there.

~~~
vetinari
The reason FAT and exFAT is being used with devices, is Windows.

If you used any other fs, like f2fs, the ordinary user would insert the card
into their computer - and nothing would happen. No, Microsoft is not going to
ship alternate filesystems with Windows, when they can use theirs as racket.

~~~
justin66
You might be right, but it's worth noting that nobody with any pull - the
digital camera industry, the smartphone industry, the storage manufacturers -
ever even tried to make it happen.

~~~
shmerl
I'm kind of surprised, Samsung didn't push f2fs more. They initially announced
it as a flash oriented and free filesystem, and promised a Windows driver as
well. I don't think it ever materialized. And Samsung have enough weight to
push it through.

~~~
justin66
Yeah. They're one of the ones who could do it, especially since they'd
probably be able to ally with Google wrt Android. It's a real lost
opportunity.

~~~
shmerl
Just speculating. It could be a leverage thing. They created it, and MS gave
them free usage of exFAT or anything of the sort (in return for not pushing it
further). Could be just usual mismanagement too.

------
brazzledazzle
Our patent system is completely broken.

~~~
bluejekyll
Software should only be covered by copyright; software patents are crazy...
there are too many dumb ones to count.

~~~
mikekchar
It certainly should be one or the other. It's completely crazy that you can
copyright something, then make a vague description of it and patent it too
(without even having to make the original source code available!). And having
worked for companies that got sued for patent infringement quite a bit, what
usually happens is that someone sues you and demands your source code in
discovery. So it isn't even a "I'll show you mine if you show me yours" \--
it's "Your software could plausibly have been implemented using our patented
technique. Let's have a look at your source code that proves that it isn't".

So instead of being a tool that trades off a limited monopoly for a technique
in exchange for making public something that would have been a trade secret,
it's a way of protecting a particular implementation while at the same time
being able to force your way to see all of your competitor's implementations.

~~~
bluejekyll
I disagree that it could be patents or copyright. I don't think it should ever
be patents. Patents are designed to give the patent holder a monopoly on the
innovation so that they can protect their development and research costs. They
exist for things with high R&D costs.

Software is much more akin to math or music. You can not patent math or music,
and fundamentally it's for the same reason. We must do away with all software
patents.

------
AYBABTME
Selling accumulated, weaponized, patent and IP defense as a service reminds me
of how protection rackets work.

Also, this sort of leverage isn't something a non established large business
could provide, stiffling competition in the cloud space. If the other
Google/AWS follow suit, the "cloud" and hence the future internet will not be
a better place.

disclaimer:I work for a competitor but this is strictly my opinion on the
matter, not that of my employer.

~~~
sametmax
Yeah but MS is a good guy now right ? Look at all the open source ! Linux
integration ! Nobody insulting competition anymore ! And Bill Gates is saving
Africa !

Now please forget all the terrible things they did for 20 years. They don't
matter.

This is totally not PR.

They are good now.

------
rkaregaran
Appears that they're offering patent lawsuit indemnification as a built-in to
using Azure, as they have a massive patent portfolio: "use Azure, and as an
additional benefit, we'll cover damages related to patent law suits that
arise, if we have a patent with which we can defend."

------
j_s
"That's a very nice website you have there; it would be a shame if anything
were to happen to it..."

------
darawk
I'm not even sure I understand what's happening here. Are they offering to
rent their patents to you to use in defending yourself against patent suits?
What?

~~~
Lazare
Looks like there's a couple parts.

1\. They promise that if you get sued for using something open source that
Azure is built on, they will indemnify you. Eg, with AWS, in theory someone
could say to you: "We have a patent on DB replication, you use MySQL with RDS,
that has replication, you owe us money." Unsure if that's a valid risk, but
maybe.

2\. If you get sued and you've been paying $1k a month or more to Azure, MS
will give you one of a their 10k patents on a list if it'll help mount a
defense. Could be helpful, I suppose, but hard to figure out the value. If I'm
sued, AND MS has a relevant patent on the list, how useful would it be?

3\. MS promises that IF they transfer some of their patents to a patent troll
in the future, the terms of the transfer will prevent the troll going after
you. Again, hard to quantify the value, especially since it depends on MS's
actions. "We have a big hammer, but we promise not to hit you" is only
_partially_ reassuring. But still better than no promise at all!

On balance these all seem like unmitigated goods, although it's hard for me to
evaluate if they have any value. It never occurred to me to be concerned that
I might be sued for using open source tools on AWS. :)

I'd estimate it to be about 80% marketing, and 20% a good faith attempt at
defusing the disaster that is modern IP laws.

(Edit: And contrary to some other commenters, I don't see anything malicious
or harmful going on here.)

~~~
mmalone
In my experience there's definitely value here. Companies get sued on the
regular for bullshit like this. I've had to deal with three patent suits at
startups. They were all bullshit, and they all ended in settlements of
~$10,000 (cheaper to settle).

Countersuing is probably the #2 most common response to a patent suit (after
settling). It's so common that there's a name for it: "defensive patent
strategy." Basically, you file a bunch of patents, but you don't proactively
go out and look for infringers. You're just hanging on to them in case you get
sued. If you get sued you go and look at the person who's suing you and try to
find one of your patents they're violating. This actually works fairly well
because the patent system is so broken, and patents are so easy to get, that
you can almost definitely find a violation given a reasonably large portfolio
(and 10,000 patents is reasonably large).

Unfortunately, countersuing doesn't work against NPEs... and NPEs are usually
the ones doing the suing.

~~~
jacquesm
> They were all bullshit, and they all ended in settlements of ~$10,000
> (cheaper to settle).

You are part of the problem. _NEVER_ settle with a patent troll. I've had
plenty of these assholes come after me and nothing ever stuck, on top of that
I've helped others defend against the trolls with a 100% success rate when and
if they stuck to the end.

Yes, it can cost you money, but this real life prisoners dilemma can only be
won if we stick together. And MS is playing both ends against the middle here,
to their own advantage of course.

~~~
mmalone
Wow, way to blame the victim.

The first two times the decision was made above my head.

The third time I was in the C-suite and it was a joint decision. I had a
heart-to-heart with our lawyers because I _did not_ want to settle. Our head
IP lawyer said he felt me -- he thought the suit was bullshit, would love to
fight, etc -- and if we decided to defend he'd be 100% with us. However, his
firm was currently engaged in defending another suit with the litigant and it
had been appealed through the circuit court in Texas. At that time it was
pending hearing by the Supreme Court. That client had already accumulated more
than $250,000 in legal fees and there was no guarantee that they'd win. Even
if they did win, it was unlikely that they'd be able to recover any of those
fees. He estimated total cost of fighting would be between $250,000 and
$500,000.

I reached out to friends at large tech companies to see if they had experience
dealing with the litigant. I heard back from two of them that they did have
experience, and that they settled. Since there was an ongoing case involving
the litigant that was already heading to the Supreme Court (and one that had
at least as good a chance of winning) we opted _not_ to spend a significant
amount of our venture capital fighting an expensive battle that, at best,
would cost us hundreds of thousands of dollars and, at worst, we would lose in
Texas.

In the end we spent significantly more money on investigating a defense then
we actually paid in settlement.

If you're interested in covering the financial costs associated with fighting
these suits please let me know. I would definitely take you up on that and
fight all day every day.

~~~
jacquesm
Extortion is enabled by the previous rounds of victims paying up, so it's an
endless cycle that simply won't stop until people stand their ground.

> If you're interested in covering the financial costs associated with
> fighting these suits please let me know.

I'm well aware of that, there were years when I paid more to the lawyers than
to the tech department. Still, overall it was worth it. Big factor in our
survival was that we had an EU parent company rather than one on the far side
of the Atlantic.

Even so, I refuse to be extorted.

~~~
mmalone
I did too until I realized that the alternative had a high probability of
ending in bankruptcy resulting in loss of employment for two dozen employees.
I'm fine taking a moral stand when I'm the only one who stands to lose. It's
harder when you're playing with other people's money / lives.

The world isn't fair.

~~~
jacquesm
I guess this is where it helps that I was the CEO of the company being sued,
had a European parent company (where software patents at the time were not
valid) and would rather go down fighting than give in to blackmail. I can see
the economical argument and I also see your argument with respect to playing
with other peoples lives and money. The problem is that that attitude
eventually results in _more_ effect on other peoples lives and money, just not
the people in your direct vicinity.

~~~
mmalone
It's complicated. FWIW, if I was the CEO I probably would have fought.

------
bobberkarl
AWS requires you to give up your ip to use their services. Microsoft is
lending its customers his patent portfolio umbrella. [1]

Am i correct?

[1] ttp://www.iam-
media.com/blog/Detail.aspx?g=b1c57b03-5b9c-4cbf-b8dd-e209daf3f686

~~~
jacquesm
No. That's just another FUD article. What the practical upshot of that clause
is is that if you are going to troll Amazon with your patent portfolio you
can't be a customer at the same time. They do not require you to 'give up your
IP', either entirely or in part. Copyright is still what it was before, your
patents are still yours.

And all this subject to interpretation by a competent judge.

The hypocrisy lies of course in Amazon patenting just about every dumb
'innovation' that they came up with in the early days of the web (recall the
1-click shopping patent). So for Amazon to want to be protected pre-emptively
against customer lawsuits over patents is silly.

I also highly doubt a judge would honor their survival clause, but it's up to
Amazon to put in their contracts whatever they want, it's up to a judge to
decide if it holds water or not. So until this has been litigated it doesn't
mean a whole lot.

~~~
josaka
>>>if you are going to troll Amazon ...

Probably consistent with what you said, but just to clarify, I think the AWS
license also applies to suits against AWS customers. The license states
"...you will not assert... against us or any of our ... customers... any
patent infringement or other intellectual property infringement claim
regarding any Service Offerings you have used."

It's difficult to imagine how one AWS customer would be able to use this to
defend a patent suit from another AWS customer though, since they are not a
party to the contract between Amazon and the patent holder that conveys the
license. You'd probably have to get Amazon to intervene in your suit.

------
mmalone
I'm not a lawyer, but I have dealt with patents a fair amount... so here's a
quick ELI5...

1\. Uncapped indemnification: this one is pretty simple. If you're sued for
using some tech that powers Azure, Microsoft will cover any losses (indemnify
you).

2\. Patent pick: if you're sued for patent infringement _at all_, Microsoft
will let you "pick" one out of a selection of 10,000 available patents to use
in a countersuit. This is an extremely common tactic in IP lawsuits, but one
that is only available to folks with large patent portfolios (this is what
people mean when they say they have a "defensive patent strategy"). For
example, Oracle sues Google for infringing patent X, Google countersues for
infringing patent Y, eventually everyone settles (or not, heh). Presumably,
the patent will actually be transferred to you (you become the legal owner of
the patent) for the duration of the suit (I'm sure there are lots of
conditions here).

3\. Springing license: "non-practicing entities" (NPEs) are a _huge_ problem
for tech companies. They're also known as "patent trolls." The reason they're
so hard to deal with is that they don't actually do anything (other than sue
people) so it's hard to use the countersuit tactic mentioned above (if you
don't do anything, you're probably not violating any patents). Microsoft is
saying that, while they do not generally transfer patents to NPEs, if they
ever did so there will be a "springing license" to that patent granted to
eligible customers. Therefore, those customers could not be sued by the NPE.

Now, some editorial. I actually think this is a good thing. They're trying to
create a "patent free zone." They can't get rid of patents, so the only way to
do that is with "legal hacks" like this. Right now small companies without
patent portfolios are at a huge disadvantage when it comes to defending
against frivolous patent suits. This would absolutely help. Moreover, one of
the eligibility requirements states that you must have remained "patent
peaceful" against Azure workloads for the past two years. The only way they
could have made this better is if they had made the program more broadly
available (btw, you're only eligible if you spend > $1,000/mo on Azure).

For what it's worth, the ideas here are not completely novel. Patent exchanges
are fairly common (although you usually need a patent portfolio to join one).
There are also some similarities with the Apache 2.0 "mutually assured
destruction" clause which (again, in ELI5 terms) tries to prevent patent suits
for use of Apache licensed software by saying that if you sue someone for
using Apache licensed software then other people can sue you for your use of
Apache licensed software (without giving up their right to not be sued).

~~~
jazoom
So many questions. Like, what if Microsoft is the one suing you?

~~~
mcintyre1994
Surely all these cloud services have agreements not to sue their customers for
using their patented services that they market and sell?

------
uptownfunk
Cloud IP insurance policies would be something interesting to see in this
space.

I was at an insurance analytics conference (kind of) recently, and everyone
was all hyped up on this notion of trying to write policies for cybersecurity
protection. The problem was the underwriting and how to price the policies. I
think another thing we could see in this space is how to insure IP that's in
the cloud. Cybersecurity insurance meets IP.

------
slim
The EULA you get when you sign up:

[https://www.microsoft.com/en-
us/servicesagreement/default.as...](https://www.microsoft.com/en-
us/servicesagreement/default.aspx)

It contradicts the promises on the homepage. I would not sign up unless I get
the signature of Nadella on a contract stating that Microsoft won't sue me

------
DannyBee
So, it's unclear because the details on the legal instruments used to effect
the patent transfer don't see that clear. (If anyone has a link to it, i can't
find it) The requirements seem very clear: A. pay azure 1000/month

B. get sued for a patent you aren't being indemnified about (which are the
open source ones)

C. be able to use an MS patent for defensive purposes in a counter-suit.

Note that only exclusive licensees of patents could do C, so it must be some
kind of transfer.

Without seeing the instrument, it's hard to see what the loop holes are, but
at the very least, it seems like you could very cheaply tie up these 10000
patents forever.

1\. Build 20000 shell companies 2\. pay azure 1000/month through 10000 of
them. 3\. Acquire 10000 worthless patents not in the area of open source,
distribute to half the ones not paying. 4\. Sue the 10000 that are for patent
infringement. 5\. Pick 10000 microsoft patents to counter-assert 6\. Sit in
legal limbo forever 7\. Repeat as necessary

Cost: 10 mil.

~~~
mmalone
Subsection 4.17a$19 in terms: we reserve the right to not license you any
patent if you do that thing you just described.

Seriously though, hopefully there's some mechanism covering this sort of
abuse. Even if there's not, if I were MS I would simply not comply. It's civil
law, and your behavior is completely unreasonable and does not reflect the any
reasonable interpretation of our agreement -- come at me. Besides, what are
your damages?

------
stevehiehn
Interesting. For conversation sake if I were to build a service directly
competing with an exisiting Azure service offering am i protected from
microsoft itself?

~~~
amygdyl
Hi Steve,

such a pity you asked so far down the thread. I really enjoyed having a crack
at a reply. So much so...

I found there were several ways to consider your question, not all of which
were immediately obvious.

To capture my thought, well I put up a repo, same handle as here, at github,
[https://github.com/amygdyl](https://github.com/amygdyl) , under HN_REPLY,
where the context and flow of my thought really needed to bypass the "comment
is too long" objection I encountered.

(Having done this, I realized just how much I've been discarding in
frustration, when editing simply did not bring my reply within the limit, so
this may begin a hopefully worthwhile habit.)

My partial conclusion went as follows:

"[...] the outcomes are ternary: the indemnity is worthless; the indemnity by
putative assignment of a defensive patent has some limited use, but you are
defending not Microsoft directly, but MS + 3rd party; or "highly dependent on
strategic evaluation".

I do not think that this contracts provides any straightforward indemnity
against adverse action initiated by Microsoft, however. Simply nothing in the
context or wording leans towards supporting that interpretation.

However, in the event that Microsoft initiated suit claiming infringement of
one of the portfolio of 10,000 patents covered by the clauses within this
contract, clearly the siutuation created by the contract would become a
nullity.

So, in dealing with 3rd party risks, the result could be quite open to
interpretation, at least in early stage litigation.

However, as to your question on face value (and making a number of
assumptions) then the answer is - if these assumptions became fact, in
particular the tort for infringement cited a patent among the 10,000
portfolio, then, yes, this would constitute effective, but implied, mitigation
and defense, which if the relevant clauses were enacted, and defense argued,
would create a nullity.

How this benefit for customers of Azure actually plays out, if it in fact is
ever played out, might never encompass as risky and interesting a scenario as
that which I in passing posit. But I believe that in potential, Microsoft
might have done a extremely positive, open minded and market generative, act,
in offering this standard term.

It gets more interesting, if you consider the possibility of two Azure
customers, suing for infringement, where Microsoft IP might come "in between"
their claims. [...]*

 _I hope that makes some sense to you, but I genuinely felt the complete flow
of my argument was worth putting down, would absolutely appreciate your
thoughts - john_

------
slim
That's Racket. You have to pay to avoid getting sued by Microsoft

