Microsoft Patent Claims

Fortune magazine is playing host to Microsoft's latest attack on free/open source software (FOSS). Kind of like Fox News playing host to Dick Cheney attacking opponents of the Bush administration. I like how the title of the article reads, "Microsoft takes on the free world". It sounds like Microsoft is attacking democracy and all right thinking people. Well, now that I think about it, they are. :-) The article itself is not overly biased considering the audience of Fortune. I am only going to bother with pointing out one error below. What I want to address here is the myth that Microsoft has anything more then expensive toilet paper. In referring to the explosion of software patents...

As with the Internet, though, Microsoft came late to the party, then crashed it with a vengeance. In 2002, the year Smith became general counsel, the company applied for 1,411 patents. By 2004 it had more than doubled that number, submitting 3,780.

Maybe Microsoft thinks they can perpetuate the myth that until they "innovate" something it does not exist. That might work in marketing where they can spend hundreds of millions of dollars every year convincing people who don't know better that it is true. However, no amount of money can convince those who do know better and they know the US patent system has been broken for years. Two recent US Supreme Court rulings signal that the tide may be turning regarding the explosion of software patents (and just maybe patents in general). The author of this Groklaw posting quoted this paragraph from the KSR International Co. Vs. Teleflex Inc. decision:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose.

"...the results of ordinary innovation are not the subject of exclusive rights under the patent laws." This raises considerable doubt regarding the validity of a large volume of patents issued over the last twenty years. Without even addressing the issue of whether software is patentable or not. Which the Supreme Court has made no ruling, yea or nay. After filtering Microsoft's claim of patent violations through a test for merely "ordinary innovation" there remains the issue of prior art. Having come so late to the patent trolling party it is difficult to fathom much of significance that does not have prior art. But we have no way of knowing until we face the Devil in the details. A face Microsoft has not yet revealed.

[Microsoft Licensing Chief Horacio] Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them.

As a brief aside here is that error I mentioned above. A few paragraphs later in the article the reporter makes this mistake:

Now that Microsoft had identified the infringements, it could try to seek royalties. But from whom?

Seek royalties for what? They have not identified any infringments? Until Microsoft makes specific cases it is just noise. So, at the end of the day Microsoft can pull any number out of its butt that it cares to, it is meanless smoke and mirrors until they get into specifics. On that day, the FOSS community can begin the work of finding prior art.