Those three sentences together form the best explanation I've seen yet on why software patents are so problematic.
I'm not sure if the standards are low, rather that the examiners don't abide by the rules set out by the USPTO. Novel and non-obvious are both requirements.
because the meaning of a patent’s claims are often not clear until after they have been litigated
This is another failing of current examiners. The patent should be written such that one skilled in the art could reproduce it. The patents are convoluted and unclear enough that one likely couldn't produce much of what is patented, because its not clear what the invention is. The examiners should make people resubmit patents, under time constraints, so that they are clear. Much like submitting to a journal.
And obviousness isn't as easy to show as you imply. Everything has to be based on prior art, which isn't always readily available.
Clarity is subjective, and even claims that seem clear can get twisted around once litigation starts. Attorneys are masters at this.
I'm just pointing out that it's not as easy as simply getting better examiners, although that would certainly help.
Or is it too easy to pay some expert witness $1000 to come in and say "yeah, that's totally clear to me and I'm an expert, so nyah nyah nyah."
Just thought I'd share this random anecdote..
Wow. I wonder if they understand the impact of that business decision?
Were you unpaid? Or something, that changed your legal status in a relevant way?
Getting things approved to be filed was fairly trivial. In fact we would occasionally (about 2 times per year) have meetings in my team where we would spend an entire morning just brainstorming. Then we would take the 'best' ideas and write them up (this included a minimal amount prior art research and about 4 pages of prose and diagrams if you wanted). We would discuss the ideas with patent attorneys who would advise us on whether an idea was worth pursuing. It was a very well supported process.
We talk about the RIAA abusing artists but as MS is showing these patents are worth billions to them. Engineers need to start demanding their worth, at least. If we're going to be DDoSed by patents we might as well enrich someone other than lawyers.
I think public opinion/brand reputation is an important thing to consider in these types of situations. For example, this poll shows only 32% of people agree with the strategy:
I wonder what effect that has on the other 68% next time they have a choice between Microsoft and someone else.
Call me naive, but I actually think they try to stay away from playing in the filth even if everyone else is doing it.
I think a lot of firms come to the conclusion that the profit is bigger. Most of the world (consumers) doesn't give two shakes about patents.
At this point though, with thousands of phd level engineers and probably tens of thousands of the smartest people on the planet working for them, you have to conclude that the reason they have no patents is not that they are unable to produce patents, but rather a conscious choice that they don't want to.
The Nortel auction was fascinating. After leading the bidding Google just left the table and let its competitors buy up all the patents - patents that may very well injure Google in the future. I find it really weird that they opted out of at least buying some "protection" - in the end I can only put it down to a matter of principle - which is something I do respect them for.
The calculation might have gone differently if it hadn't been for the fairly recent SCOTUS decision that made it more difficult for a plaintiff to obtain a permanent injunction against distribution of an allegedly-infringing product ( http://www.patentlyo.com/patent/2006/05/supreme_court_v.html ). If it hadn't been for that decision, the Nortel patents might have been worth $3 billion and then some.
Microsoft doesn't want to reveal the full list of patents, because the open source community would go at them like a bomb finding prior art and coding around the few solid patents.
The $5 per unit HTC pays Microsoft is only $.20 a month when passed directly on to the consumer and spread out over 2 years.
I just hope the large Android ecosystem starts pushing for patent reform, and soon. This is just fundamentally broken market behavior...Microsoft is getting protection money. They don't even have to provide products people want, and they still make money on every smart phone sold.
BTW, fascinating article, thx! At the time, all of the MS anti-trust stuff seemed so distant, but given the current tech landscape, it seems to have taken on much greater importance.
In this case they aren't charging by the CPU, they are charging by the operating system that ships with Microsoft's "intellectual property". If they got away with the per-CPU crapola 15 years ago, nobody will blink an eye at the current arrangement.
You have to wonder how galling it is for Microsoft that even after they impose this "tax" manufacturers still prefer to make Android devices and still sell vastly more of them than WP7. Effectively it values WP7 at less than free which must be rather insulting.
Edit: I think the fact MS is even trying this speaks volumes about how Microsoft misunderstands the market. Stuck in a 1990s mindset their assumption is that their problem competing with Android is that it is free while their OS costs money. They simply do not understand the difference between free and open source and assume the only difference between the two is a financial one. They fail to see the strategic value of Android being "open" to these manufacturers and don't get that it is far greater than anything they can ever impose on them via patent trolling.
We can estimate per phone profit from the quarterly report .
- Q1 after-tax profit was NT$14.83bn
- Handset shipment for 1Q was 9.7mn units
~ NT$1500 per phone (~US$55/per phone)
Also they are planning on charging Samsung $15 license fee, so that would be a lot for a $150 phone.
There's a great startup in that sentence for whoever cracks the algorithmic challenges.
Even if you could do this (it requires machine learning far beyond what is currently available), the answer would always be "this software violates many patents". And once you know that for sure you're liable for triple the damages when your business is successful enough for the patent holders to come around to wring their money from you. Unfortunately, it really is better to just be ignorant in this situation and let the lawyers figure it out.
Not to the business' advantage to know anyway, more damages.
Is it possible to build something without infringing on some patent anymore? (even if nobody is suing you)
I wonder if Microsoft has employees working on
trivial things they can patent
(1) all engineers are encouraged to look for things to patent, while being actively discouraged to taint themselves by looking at other patents
(2) when an engineer thinks he has something patentable, he sends the description in his own words to a patent attorney that also knows engineering -- it's his job to translate the engineer's description into legalese.
(3) the internal patents office of the company examines the proposal, looking for prior art and declares it good to go, or sends it back to the drawing board.
(4) profit -- after a proposal is good to go, the engineer gets money, even though that patent request hasn't been approved yet by USPTO.
Now, the monetary reward isn't that high usually - it amounts to something like 1 or 2 salaries where I live, or something like that - but if you keep churning proposals, you can basically double your monthly revenue.
Come on. This stuff is easy. Why the content-free troll?
Seadragon is Zooming technology that is, at best, a decent demo at this point (and probably designed to be patented). For people who don't know what we're talking about: http://zoom.it
Accelerator I'd never even heard of which is probably because it was introduced in 2006 and no finished product has ever come of it.
Cleartype came out of the Microsoft e-books team which wasn't part of Microsoft Research to the best of my knowledge
So giving you F# that makes two products: Surface and F# for $9 billion dollars per year. So either your argument is those two products cost the majority of that money to maintain or I go back to my original point. Microsoft Research's primary function at the company is to patent things
(Disclaimer: I work for MSFT, but now MS Research)
Don't get me wrong, I think the idea is really cool. The thing is that the 80's midi background track was just a terrible way to implement it.
OTOH, I think .NET/Mono are awesome pieces of language innovation.
EDIT: oops - didnt see that this was mentioned below.
See what Johnny Chung Lee said of his time there for a more balanced look of the records.
I've played around with the Kinect, and without Microsoft's code, all you really get from the hardware is a depth image (think an RGB image with distance from camera for each pixel instead of intensity). Everything else is developed by Microsoft, and it is not an easy feat.
Prime Sense developed their own software for pose detection and tracking, but it is inferior to the XBox360 implementation.
This is wrong on so many levels. If you don't like the process, don't support it. Google is _not_ better than any other company out there. Sure, you have sympathies based on previous encounters and actions, but the goal is the same for every company: Make money.
You're saying that it's different if Google tries to patent something. It's not. There's no moral involved here, this is just plain business. Either you like patents or you don't. Hoping that 'the good guys' apply for lots of patents is crap.
Have patents but losing your monthly revenue? Why not sue others to keep your stock price afloat (instead of innovating your business or products)
The mere act of having such legal armaments creates a moral hazard.
Source for pushing Window on phones: http://www.reuters.com/article/2011/07/06/samsung-microsoft-...
That's not using intuition. That's using an opinion poll and ignores the length of time it takes to apply for and be granted a patent.
When the author goes on to point out that Google has 700 patents and Microsoft has 18,000, this would seem to be circumstantial evidence that Google's innovations are more likely to be based on the work of others than original research - particularly given the interest which companies have to file patents defensively.
This is not to say that Microsoft's claims are valid (regardless of the obvious fact that the past actions of Armonk have no bearing on their validity) or that software patents are a good thing.
Would they? I don’t think so. Android is iPhone + Symbian + Blackberry + Java. Windows Phone 7 is a new beast.