back to article Microsoft: 'Patents are gibberish - unless you're a patent lawyer'

Microsoft's internal advice when you're potentially treading on someone else's patent? "Ignorance is bliss." Microsoft engineer Eric Brechner writes an internal developer best practices blog called Hard Code under the name I.M. Write. Slashdot flagged his most recent entry, which tells Microsoft to completely ignore other …

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Missing the point?

Most companies have a "don't look at patents" policy because if you *knowingly* infringe a patent you are hit by the triple damages laws in the US. Ignorance is cheaper ;)

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Gates Horns

Ignorance is not wisdom

The reason that most tech employees are forbidden from reading patents of others is not because they are hard to understand (a somewhat true claim, moreso on most software patents). The real reason is that if you are contaminated by the IP of others and implement something that borrows from other work, then you can be found in willful infringement, and they can seek higher damages in court than if it was accidental infringement.

Sounds like either ignorance on the Micro-flunky's part, or else deliberate misdirection. In general, for software, it's just another good reason why you shouldn't be able to patent anything you can put a copyright on.

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Gates Horns

'Patents are gibberish - unless you're a patent lawyer'...

... and that's the way we like it!

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Gibberish - Lawyers

Says it all!

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Anonymous Coward

Standard Practice

The gist of this advice is exactly what we were told at other companies I have worked at - don't look at other people's patents.

The reasons I was given were rather different, though - it's the triple damages rule. If you are found to infringe on a patent but don't know about it, then you get punished; if you knew about the patent beforehand, then you punished much more.

Solution: don't look at patents. Don't search patent databases. All of this history might be accessible in discovery.

My feeling here is that the estimable I.M.Write is simply providing a more amusing cover for the real reason.

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Ignorance is cheaper

Unknowingly violating a patent is not good and can lead to lawsuits and financial loss. If it can be proven that you knowingly and willfully violated a patent (i.e. the plaintiff can prove that you read the patent and therefore were aware of its contents) then it can be a lot more expensive.

What this guy is pointing out is that looking at a pile of legal gobbledegook is the worst of all worlds because you may still not be aware of what the patent was about and if you then go on to violate it, you'll get stung for the higher amount because legal people won't believe you didn't understand their language.

Weren't patents intended to encourage innovation, not stifle it?

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Flame

Ignoring patents

Also describe as ... "Redmond start your photocopiers"

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Alert

Obligatory quote...

"In a memo to his senior executives, Bill Gates wrote, “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.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.” "

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What if this were true?

As noted, the triple damages rule is probably the reason that MS have this policy, and the blogger has simply mis-understood. However, if it were really true that the patent was indecipherable by one skilled in the art, then it would be invalid. The whole point about a patent is that society grants a monopoly in exchange for publication. (Note to lawtards, the clue is in the word "patent", as in "clear".) If the patent holder didn't uphold their side of the deal, society is not obliged to either.

It's about time we had a few decisions in upper courts that reinforced these basic principles. Heads up inventors! Patents need to be new, non-obvious and published. Otherwise, there's no reason for Society to play your game.

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Anonymous Coward

Why is this article rated negatively?

The comments seem fairly positive. It introduced something that I wasn't aware off. It gave an interesting example (even to someone who was aware of the issue) in Microsoft. And yet 3 people gave it a negative rating.

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Stop

No joke

It's not a joke when a US friend of a relative loses his business, his home, and his voice over a bogus patent he can't afford to defend. He lost his voice because the imposed settlement was made cheaper for him (they could have put him into debt as well as taking what he had) by his signing a non disclosure agreement. The company that owned the patent had gone bust so the liquidators sued him for every dollar they could squeeze after checking what his house, car, business etc. were worth. The liquidators had a legal duty to obtain as much as they could from the bankrupt's assets and had no industry reputation to uphold in doing so. It is also impossible for a software business to insure against this kind of risk.

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Happy

The best plan...

...is not to look at anyone else's patents. Then invent something that's probably been patented by someone else (at least you suspect it has, but of course you don't actually know) and apply for your own patent on it.

Chances are, you'll be granted the patent because the lawyers who understand the gobbledygook don't understand the technology and won't spot that your ideas are the same as in another patent (but expressed in different gobbledygook, obviously). To a lawyer it will appear that your detailed claims are different because you did, after all, invent them independently and will describe things in different terms.

So when law suits start to fly, you can wave your patent back at the aggressor. That'll probably put them off. If not, they are at least starting from a lower base than if you didn't have a patent at all. Holding a patent expressed in different words but covering essentially the same invention means there are probably some detailed claims in your patent that aren't in the original and which your rival has been infringing. You can use these to bargain. It also makes it much easier to design around your rival's patent if you need to.

The patent system seems like a good idea until you try to use it. Then you realise that the rules are not what you thought. It's more like poker really - bluffing is a large part of the game.

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The patents system is a shame indeed

But to see this piece coming from M$... priceless. One of the most aggressive patent-bullying entity that ever existed, advising to ignore other people's patents...

Not that this might surprise anyon. The surprising part is that the memo tells to research licences and copyrights -two things that MS has always been very happy to blissfully ignore in the past. Actually I would be surprised if any of their products was NOT violating several licences and copyrights.

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Anonymous Coward

Further notes on patent armageddon

Pierre is right to feel like it's absurd that a large scale patent holder and aggressor advises against looking into patents. MS's behaviour is not without reason though - it's another part of the patent game.

Patents generally do not seem to be filed to protect an invention. They are filed so that you can achieve a critical mass of patent 'weaponry' - you will not file these because you care about the invention in the papers at all. You will file them so that you have a portfolio large enough that, should someone else sue you for infringement, you can wave several patents back at them, saying *they* are infringing on *these*. Whoever has the most to lose will back down, things get licensed around, everyone comes out at ground zero (except the lawyers, who grin and giggle and probably go have drinks together).

Back to the point about filing against anything that looks like it infringes: in order to keep your patents valid, you MUST enforce them against anything that might infringe. Otherwise, when something *does* infringe, the defense can bring up "failure to defend" as a valid argument in getting your claims dismissed.

Finally, yes - in the software industry you are generally actively discouraged from looking into anything related to patents due to the 'willful infringement' added damages that any sane lawyer will try to get tacked on anytime something goes to court.

So there we have it:

1. You cannot look at patents if you are trying to implement something.

2. You have to patent whatever it is you implement in order to keep someone else from suing you for having done it.

3. You have to defend your patent anytime anyone looks like they might be infringing it.

4. You have to have enough patents sitting behind you that you can smack anyone who looks at you funny.

I am *not* saying that software companies do not use this to their financial advantage. It is pretty clear that the primary beneficiaries of this system are the lawyers, though.

It gets even funnier when you realize most of the infringing work is closed-source, so you have to say 'the outcome looks similar to the outcome we have... so we have to sue in order to get access to their source in order to verify there is infringement that we can sue over..."

It's a good thing the EU is trying to get consistent with US patent law in this area - your lawyers are probably itching to file suits against one another...

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Natural Justice is not an Ass like the Law can be.

"Back to the point about filing against anything that looks like it infringes: in order to keep your patents valid, you MUST enforce them against anything that might infringe. Otherwise, when something *does* infringe, the defense can bring up "failure to defend" as a valid argument in getting your claims dismissed." ... By Anonymous Coward Posted Friday 14th November 2008 17:33 GMT

MUST, AC? You aren't one of those giggling swigging lawyer types, are you?

"Otherwise, when something *does* infringe, the defense can bring up "failure to defend" as a valid argument in getting your claims dismissed." Which could also be presented as a failure to attack as a valid counterargument but it is only a game played for the sake of enriching lawyers who look to be paid win or lose. And whoever has the biggest wallet and and most vulnerable defence pays the piper for that tune.

What you invariably find though is that all the very best inventions/innovations, as they are being developed towards any Patent Application and/or Protection, will always contain a Poison Pill/Ticking Time Bombe to Trace and Destroy the Parasitic Pirate/Plagiarising Privateer just at the very Moment they least expect it and Most Deserve it.

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Linux

How Appropriate

Interesting that M$ has the nerve to decry anyone else they suspect is encroaching on any of their patents from their billion dollar patent organisation. It's fairly assured that they've stolen a substantial proportion of their software to begin with anyway.

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Anonymous Coward

Patents are simple to understand

but of course I have never read one.

I hear that if you know of the existence of a patent then well you could be worse off :)

Absolutely ridiculous, time to get rid of patents I say, it is not as if China bothers to check either.

With no patents people would be free to invest money into the actual product, not spend time fretting over the possibility that they chose the same angel or discovered the same naturally occuring thing.

With the economy in tatters now is the time to sort out this patent nonsense once and for all, there is probably a mid way point, that will allow the small time inventor some cover and take the patent power away from all the big corporates.

I like the idea of an individual only being allowed to own say 7 patents at anyone time, and company's only allowed to own 3 in their entire chain of companies, that would create some diversification in the market place, and put the power back into the hands of the people, not the corporations.

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Alien

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