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back to article Microsoft legal beagle calls for patent reform cooperation

Microsoft has urged government, the courts, and industry to work together to help improve the US patent system, but also cautioned against breaking those aspects of the system that do work. "There is no question that the U.S. patent system has tremendous strengths but also significant weaknesses," Microsoft executive VP and …

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Nice try but...

Making the loser pick up the bill is all nice and wonderful if the patent holder is something other than a $2 shelf company with no assets which is the current trend for patent trolls

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Re: Nice try but...

Those Jewish languages of the Patent laws are making up for childish people. Patent laws don't have gods in it so they can't stand up by themselves in the court to avoid expensive lawyers and court fees.

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Quite Sensible: Don't Throw the Baby Out with the Bathwater

There are many reasons to criticize the current patent system in advanced economies.

The knee-jerk reaction is to simply get rid of patents, or, to get rid of them in certain specific areas of innovation (most typically, software).

Regardless of whether or not you agree with Microsoft's latest suggestions, I think that the worst thing that could be done is to eliminate patents altogether, or to eliminate them for certain broad types of innovation.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

Disagree. Patenting genes is the first that should go. You shouldn't be able to patent discoveries. All gene patenting is patenting the problem and screwing everybody who tries to find a solution.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

I'm not so sure about no patents on genes - in order to maintain investment into gene science and research there needs to be some reward for the companies taking the risks, but I believe patents should be limited in a similar way to pharmaceuticals - you get ~5 years to use your patents, then it gets opened up.

I wouldn't mind a similar thing being done in software, where tech moves so fast that certain aspects (particularly in UI design) become ubiquitous within a couple of years - it also prevents a patent troll sitting on a patent quietly whilst the rest of the industry starts unintentionally violating it, before moving in 10 years later to reap the rewards. Also tacking "on a mobile device" onto the end of an obvious concept should result in the people responsible being beaten with a stick. (Yes, "slide to unlock - on a mobile device" I'm looking at you).

Really though, any move to at least take a closer look at the patent system can only be a good thing IMO.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

"I'm not so sure about no patents on genes - in order to maintain investment into gene science and research there needs to be some reward for the companies taking the risks, but I believe patents should be limited in a similar way to pharmaceuticals - you get ~5 years to use your patents, then it gets opened up."

There is a reward for taking the risk, it's called patenting the solution. They should be able to patent a test or a drug or a treatment. They however shouldn't be able to patent the gene causing the problem and halt research on a cure to extort money.

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Anonymous Coward

Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

All bathwater. No baby.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

"Patenting genes is the first that should go."

Agreed. Everyone knows they are there, everyone knows they are worth researching, and everyone in the field knows the methods for doing that. There is no novelty or inventive step. Only a truly broken patent system would allow patents on such mundane work. Patents should protect the 1% inspiration, not the 99% perspiration. Otherwise it is just an intellectual land-grab with the spoils going to those who are already rich and powerful enough to dominate that sort of process. There is no "benefit to society in return" from granting such people a monopoly.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

"similar way to pharmaceuticals - you get ~5 years to use your patents, then it gets opened up.""

In most countries pharma patents are exactly the same as any other 20 years

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

In pretty much most of the world, you *cannot* patent discoveries, phenomenons/materials/substances occurring/existing naturally, any aspect of the human or animal body *and* methods of treating them (curative/treatment only, cosmetic is fair game as not purely medical), mathematical/organisational/business methods, etc.

Don't take my word for it, point your browaer towards the UK Patents Act (1977 as amended), the European Patent Convention (2000, as amended), the Code de la Propriété Industrielle, etc.

Every country has a way of dealing with these *statutory* (Google the meaning) exclusions to patentability, sometimes the same, sometimes different - by and large it's mostly been harmonized via TRIPS, and the US is slowly but surely toeing the line (lastly with their AIA late last year).

These exclusions have long existed, companies have long tried to get around them, and been consistently unsuccessful - if not immediately, then in later invalidation (or other) proceedings. In other words, they are not just words slapped into an Act or 10 for the sake of a long-established and -accepted collection of ethical and humanist principles (fairly elementary ones, at that), they have teeth and are ferociously enforced by Patent Offices around the world, and make the subject of encyclopaedic volumes of case law (net result for applicants is always the same, to the back of the class they go...but you can't blame them for trying: it's economics, st00pid!)

The amount of rubbish and ignorance transpiring in comments on here whenever an article mentions patents never ceases to amaze me.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

Re. pharma patents - any of you conversant with SPCs?

Big pharma get extensions of term on their patents in most countries.

Stands to reason perfectly well, after it takes them routinely over a decade to bring the subject-matter to market due to regulatory approval processes.

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Re: Quite Sensible: Don't Throw the Baby Out with the Bathwater

"Big pharma get extensions of term on their patents in most countries."

Big pharma may be able to get extensions of term on their patents in most countries. It's not routine.

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Anonymous Coward

Gene Patents

Should be removed. I agree with the above commenter's that the eventual product should be patentable but not the genes.

I think there is already a lot of Gene court cases especially with the likes of Monsanto on the GMO Soya Seed issues and second generation seeds.

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Anonymous Coward

Re: Gene Patents

http://thinkprogress.org/health/2013/02/19/1607161/monsanto-supreme-court-hearing/?mobile=nc

Monsanto is notorious among farmers for the company’s aggressive investigations and pursuit of farmers they believe have infringed on Monsanto’s patents. In the past 13 years, Monsanto has sued 410 farmers and 56 small farm businesses, almost always settling out of court (the few farmers that can afford to go to trial are always defeated). These farmers were usually sued for saving second-generation seeds for the next harvest — a basic farming practice rendered illegal because seeds generated by GM crops contain Monsanto’s patented genes.

Patent the seed product but not the genes underneath and penalise farmers for using second gen seeds grown from the original plants.

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Windows

May as well say it

"We cannot innovate. Help us to monopolize technology and prevent progress for the benefit of our shareholders and employees. Because: jobs, retirement plans, your reelection campain fund and the 'fact finding' junket to Thailand we paid for where we took these quite factual and interesting videos of your activities and proclivities."

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Linux

This is interesting

" Microsoft plans to make information explaining exactly which patents it owns available to anyone on the web by April 1, 2013."

Does that include the still-undisclosed 240-odd patents MS has been threatening and blackmailing the Linux community with for the past few years?

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Re: This is interesting

Exactly, that is why this should read:

Microsoft plans to make information explaining exactly which patents it owns available to anyone on the web by the April Fools' Day, 2013.

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Linux

Now Microsoft

About transparency opportunistic behavior and gamesmanship, suppose you told us what patents you think Linux is infringing on.

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Re: Now Microsoft

That's what I first thought of when i read the article. Also the way I read it seemed to indicate that they will be available to view. But do we actually know the patent numbers? I guess not as we already do not know but it should be easier to search the ones MS list rather than all of them.

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driving innovation?

Someone should ask to cite a single example of 'an individual or startup' successfully patenting and profiting don a genuinely innovative software patent.

Software patents is a game only big corporations and shyster lawyers can play.

If the present trend continues small shops will stop writing code as they will inevitably infringe someone's patent "method for storing a value enter by a user or agent''.

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Linux

Re: driving innovation?

And of course, no-one ever created anything before IP rights were enshrined by law.

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Headmaster

"Among the chief weaknesses Smith cited..................

...............were abuse of standards-essential patents, lack of transparency into who owns patents, and inadequate patent review processes at the US Patent and Trademark Office (USPTO) leading to overboard patents and frivolous litigation."

I find it hard to disagree with very much of what he is quoted as saying although hearing an example of "BigCorp" (whichever company we are talking about) saying this makes one go somewhat cross-eyed. Three useful additions to that list would be:

A. Applications for hardware patents: No working prototype, no patent. Nothing coming to market within three years of the patent being granted, patent annulled.

B. Making illegal the use of Non Disclosure Agreements where FRAND patents are involved - how can we know that the terms offered this or that company are Fair And Non Discriminatory if we do not know what the conditions are? Equally well it would prevent the use of "sweetheart" deals at the expense of others seeking to license where the patent holder has a financial involvement in the particular company seeking to license.

C. Severely time-limited copyright protection for innovative non-obvious software, not patent protection of any kind.

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FAIL

In other words ...

MS wants the crooked, bribe-accepting politicians to skew the rules their way.

WHAT the world really needs is a global patents law so every country handles things the same way. And this doesn't mean the American way, only.

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Anonymous Coward

Yea right...

...this is the same company who are supporting Oracle in the Java API suit against Google stating if Google's position that APIs can't be copyrighted stands, it will "destabilize" the entire software industry.

Microsoft care for nothing that wont allow them to screw money out of people and lock them into a closed eco-system.

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Anonymous Coward

Apart from all those aspects of Windows that have nothing to do with a closed ecosystem.

But the bandwagon forgot to mention them.

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Linux

"Microsoft plans to make information explaining exactly which patents it owns available to anyone on the web by April 1, 2013."

I'm obviously not the first one here to wonder which patents I'm infringing by using Linux.

To quote a certain narrator "The world may never know."

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Anonymous Coward

Re: Can't help but be cynical

And make PJ the next pope.

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protected users boundaries

There must be some standard specifications that define functional and technical areas of communication technologies that are owned by users communities.

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Anonymous Coward

This patent protection and sharing bullshit -

From the LEGAL team of Microsoft, that tries to get away with licenses that lock you into ONE office suite, on the ONE computer - for ever, with NO transferring from system to system with hard ware upgrades etc..

Fuck off parasite.

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FAIL

Wait...

....MS is complaining about the abuse of standards-essential patents? The same people who infested the world with OOXML? The same people who threaten OEMs over mysterious Linux patents? The same people who sponsor MP3, h264 etc? (Yes, MS are on the committee). The same people who routinely attack companies for using FAT (a de facto standard)?

They have the gall to whinge about patents? Really?

It's cute they don't want software patents rescinded when anyone with half a brain knows that they (and business process patents) need to be killed with fire.

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Should be plaintiff pays all bills until he wins.

Short of scrapping patents or drastically modifying what is patentable, how about this?

The plaintiff should be obliged to pay for the defense as well, on a dollar-for-dollar basis. If he won, he would be awarded costs that cover all the money he paid for the defense as well.

This would mean that small companies would no longer fear being sued by a bigger outfit with deep pockets. They could never be forced to concede, because the cost of defending their patent would be even greater than the cost of paying for a license from a troll.

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Re: Should be plaintiff pays all bills until he wins.

It would also mean that big companies can infringe small companys' patents without any fear of prosecution because they wouldn't be able to afford the legal action.

Loser pays works because you don't start the action unless you're pretty sure of winning.

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Two things I would like to see.

1: For it to be an offence ( libel ) for one party to state or imply that another party is guilty of patent violation without stating clearly which patents they believe to be in violation.

2: The royalty for a particular patent, by law not to exceed 100% of the price of the product. Therefore if the price is $100 the royalty cannot exceed $100. If the price ( as is the case with Free / Open Source Software ) is $0, then the royalty is $0. Suitable anti-avoidance procedures would need to be in place though.

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"The royalty for a particular patent, by law not to exceed 100% of the price of the product."

How would that possibly work? Even ignoring the fact it would give free products carte blanche to ignore patent laws (despite the fact they might well be monetizing the idea through some other stream), what would the cost of e.g. violating an iPhone patent be? You can't surely think the cost of a single iPhone itself (or indeed any singular product) could ever possibly equate to the R&D costs behind the device?

"Loser pays" is not a bad idea, but it does make it a massive gamble for small firms to defend their patents against massive corporations. To make a really effective change there needs to be a better effort to stop the more ridiculous patents ever being granted in the first place. And patents in many areas, particularly those relating to technology, need to get a lot shorter.

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Anonymous Coward

'Fix what's broken, don't break what's working'

that's what I'm muttering like a mantra every second Tuesday

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Anonymous Coward

Microsoft patents ..

"Microsoft goes on to claim Motorola "unlawfully sells... devices, associated software, and components thereof that infringe the Microsoft patents .. Users making routine use of the Motorola products also infringe the Microsoft patents". link

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