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Microsoft Patents

"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." - Bill Gates, Challenges and Strategy Memo. 16 May 1991

"When patents are applied to software, the result is such that instead of patenting a specific mousetrap, you patent any 'means of trapping mammals'." - Aug 2004

The Microsoft® Corporation holds over 5,000 patents in the United States and an estimated 3,000 to 5,000 more applications are waiting approval. For the next major version of their operating system, [Vista], they're filing an average of 10 patents per week. As of March, 2003, Microsoft held 435 patents with the European Patent Office. All of this patent action makes Bill Gates and company "pretty excited."

Until 2003 Microsoft claimed their patent portfolio exists only to protect their investments in research and development. However, that's no longer true. Many of the communications protocols used among Windows desktops and servers are patented and proprietary. For a fee many can be licensed from Microsoft. Developers must pay a fee to write software which can properly and completely communicate with Windows. This and other proprietary moves are being used to lock users into Windows and make alternatives incompatible.

They also attempted to charge a license fee for an old disk storage technology called FAT. It was first used in Microsoft software in 1982 and granted a patent in 1996 although the patented concepts had been invented earlier by others. All devices using this technology, which is very common in electronics such as digital cameras, would have a "tax" if Microsoft enforced license fees. While the cost to the customer would be very small, electronics companies are learning that relying on Microsoft's technology today may cost them later. Letting companies use patented software for free to gain market share, they can later use licenses as leverage. Fortunately the patent was rejected on appeal in September of 2004.

There are many patents held by Microsoft which should have been denied due to the existance of prior art or because they're self-evident and are not true inventions as defined by U.S. patent law:

The patents might seem frivolous, but all it takes is the threat of litigation to put small and medium companies out of business. A company or individual usually can't afford a defense fund if Microsoft were to decide to enforce licensing. In the past it may have not been much of a problem, but as competition becomes a threat there is real danger that these patents will be used as a weapon. Fortunately organizations such as the Electronic Frontier Foundation work to get many patents re-examined by the patent office and assist in defending violators of these erroneous patents in court.

But Microsoft does not relent. Their top lawyer has even called for patent reform to prevent bad patents from being approved while they continue to barrage the USPTO with rediculous applications. If they truely wanted a better system they'd only submit genuinely valid applications. Yet they apply for such simple things as an IsNot operator. If that particular patent is approved, for example, no one will be able to create an interpreter for the BASIC computer language with an IsNot operator without approval from Microsoft. Is comparing two memory locations to determine if they're not equal really an invention worth government monopoly protection? If someone had patented the equal operator for the C language ("==") we wouldn't have most of the computer programs in existance today. Every kid coming out of college would need a legal degree to determine what they're allowed to program. We're almost at that point today and it's largely Microsoft's fault.

Microsoft has applied for patents which could prevent competing applications from reading Office XML documents. This could then obligate anyone who has a significant amount of Office XML documents to continue purchasing Microsoft software instead of alternatives since their documents are not portable. It could also prevent the creation of new innovative tools to read and manipulate these documents by developers outside Microsoft.

In a threatening move against creators of software development tools, Microsoft has applied for a patent to the .NET APIs. It already holds patents for APIs not part of the ECMA standard, but this will let them dictate licensing to anyone implementing [.NET]. According to the ECMA Code of Conduct owners of patents on ECMA standards must "grant licences on a reasonable, non-discriminatory basis." Nothing is directly stated regarding cost. Therefore implementors of the standard can be stopped with exorbitant fees. Virtually every software patent applied for is granted. So now the statement that .Net is a multiplatform standard is rendered irrelevant. .NET developers are further locked into a single vendor. "Intellectual property attorneys said that if it's granted, the company could dictate how, or whether, developers of software and devices can link to the .Net initiative." Microsoft is wrapping its fist tighter around .Net users. The patent application can be viewed online.

The core of .NET plus the C# language being accepted as ECMA [standards] will be rendered useless if Microsoft later uses patents to force licensing fees on developers. As far as I know nothing in the core or the standards themselves is patented, but things within other basic libraries are. Since none of the "higher" libraries are standardized, they can change at any moment. WinForms, for example, can be implemented by Mono, but since it's not a standard Microsoft can change their APIs at any moment and still claim "open standards compliance". Once everyone's dependant on the common non-standardized APIs implemented by Microsoft and others, if they pull tricks like changing the APIs or enforcing patent licenses we'll again have segmentation and implementation reliance. Microsoft will play that card if they see too much of a threat.

Microsoft themselves have been guilty of patent infringement. They paid $440 million to InterTrust Technologies Corp. to properly license "antipiracy" patents and settle litigation. Microsoft also signed a 10-year pact with Sun Microsystems Inc. in 2004, agreeing to pay an initial $900 million to resolve patent issues and possibly $450 million more over the following 10 years. In 2006 Microsoft was ordered to pay $115 million to z4 Technologies for using two patents without paying royalty fees.

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Copyright © 2004-2007 Matthew Schwartz