Microsoft's Global Patent: World Harmony or Legal War?
In order to usher the patent system "into the 21st Century", Deputy General Counsel for Microsoft Horacio Gutierrez believes that "global patent harmonization" must happen. In a recent CNET article Andrew Donoghue lists a number of opponents to Microsoft's ever-growing patent power. The Redmond giant has been widely criticized for anti-competitive tactics and has been investigated in a number of antitrust cases. Unsurprisingly, Gutierrez's statements for standardized patent applications and processing have struck a chord with free culture supporters.
In anticipation of WIPO's September IP Symposium Gutierrez writes, "By facing the challenges, realizing a vision, overcoming political barriers, and removing procedural obstacles we can build a global patent system that will promote innovation, enrich public knowledge, encourage competition and drive economic growth and employment. " Contrary to this statement of patent utopia many believe that patents stifle innovation.
On Competition and Procedural Obstacles
Years ago Lawrence Lessig wrote, "A patent is a form of regulation. It is a government-granted monopoly - an exclusive right backed by the power of the state...A government employee decides whether an idea is novel, useful and nonobvious [then] guarantees the inventor an exclusive right to the idea for 20 years." Meanwhile, antitrust law is the state's effort to prohibit monopolies and anti-competitive actions. So would we see a universal patent process simply negate antitrust law? Or would we see an increase in political jockeying and legal action in the not-so-distant future?
Of course, these questions are only valid to a potential market leader like Microsoft - a company with the manpower, resources and intention to actually develop its ideas.
On Innovation and Employment
As I write this article, thousands of patent trolls scan technology blogs and computer science papers in the hopes of licensing their next jackpot. These people have no intention of furthering innovation or improving the economy. While it's unethical to license the inevitable, it's entirely legal. In many cases, patents are no longer considered a self-defense mechanism, but rather a business model. While it might create incentive for actual innovators, global patent standardization would also make it easier for patent trolls to sue for universal damages (damages that had never actually been incurred). The debate as to whether or not patents help or hinder innovation is an old one. It'll be interesting to see what cases are made at WIPO's upcoming symposium.
Next Steps: WIPO Symposium
WIPO's Symposium to Address Operational Deficiencies in Global IP Systems will set a precedent for a wide range of IP issues. Access to music, movies, art, inventions and processes will be affected regardless of whether or not a global patent standard is entertained. For more information on the event, visit the WIPO program page.
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I'll support Microsoft's idea, if and only if Microsoft agrees that global patent infringement lawsuits can be heard in any court on the globe. I'd like to see the punitive damages a European court would impose every time Microsoft infringes somebody else's patent. It would make MS wish they were back in East Texas.
while you may have some valid and interesting points to make in this post, your credibility and professionalism evaporate when you resort to name calling and spewing bile disguised as knowledgeable opinion
as for name calling:
"trolls"?
who says?
how about using the word "owners" instead?
as in, "patent owners"?
kind of makes your argument seem thinner, even nonexistant?
you write:
"As I write this article, thousands of patent trolls scan technology blogs and computer science papers in the hopes of licensing their next jackpot."
Really? how do you know that? please -- name a few of these people. and how you know them and what they are doing...
And then you write:
"These people have no intention of furthering innovation or improving the economy. "
Says who?
I suspect they would disagree with you.
But oops, its not clear you actually know any such people, let alone have talked to them.
finally you write:
"While it's unethical to license the inevitable, it's entirely legal."
"unethical"? Gosh, thank you so much for assigning yourself the role of arbitreur of ethics. Its such a pain in the neck having to think about ethics, thankfully we can all now rely on you to make up our minds for us?
sheesh!
the patent system needs to be reformed. no argument from me. but the nasty snarky derision heaped on patents and their legitimate pursuit is a catastrophe in the making, a disembowlment of the few rights and paths to redress available to the creative class, eg inventors, artists, engineers etc
Lawrence Lessig is wrong, a patent is not a monopoly it is property right. See http://hallingblog.com/2009/05/31/the-myth-that-patents-are-a-monopoly/.
Microsoft is inconsistent on its position about patents, it files patents and then argues for "Patent Reform" to weaken patent laws. Large companies like Microsoft do not need patents to survive. High technology start-up companies are the ones that need a strong patent system to survive. Lawrence Lessig and the open development community have incorrectly suggested that patents and the enemy of innovation, open development, and start-up companies. Patents are the free market method of encouraging innovation. The two alternative methods of encouraging innovation are: 1) government command and control – large government innovation projects such as NASA, and 2) anarchy, which is what Mr. Lessig has been suggesting.
The patent system has problems, but abandoning the Constitutionally mandated system of the U.S. where a patent is awarded to the first diligent person to invent, to a faceless first to file system that registers filings of corporations will have unintended consequences. To see the future, look at Steve Jobs vanity patent with 24 co-inventors with a 358 page specification. First to file will promote a series of robotically generated white papers formatted as provisional applications that are annually compressed into complex monster patents like Apple's 7,479,949 patent that still can be ordered for 3 bucks. Unless an inventor has at least a million bucks and four years to spend, his or her only option is to contract with a patent broker.
Now look at the copyright system that is to promote the progress of science by securing to authors their writings. I just don't know how an applet like iFart can promote the progress of science, but it is copyrightable. Inventors, the tinkerers of our society are being marginalized. The crux of the problem is that multiple "reasonable royalties" on a product can kill the product. There is no incentive for a manufacturer to negotiate a fair license.
re: The earlier comment taking exception with the use of "Trolls".
This is a common term used to describe the practice of patenting with absolutely no intention of any business activity other than suing to extract a portion of the value chain. The business strategy is to hold investment capital hostage and probably causes a decrease in overall business growth, innovation and GDP.
You are welcome to suggest this should be an acceptable or even protected business practice but would be hard pressed to say that it or use of the term 'Troll' does not exist as it is deployed in the article. Your umbrage and characterization is the only snarky comment in evidence. If you really don't like the term, propose an alternate that includes the ‘Troll’ nuance 'Patent Owner' fails to convey.
I know 'One of those people' because I aided and abetted their future actions . I may not like Trolls but they are just the thorns stuck to the stem that gifts us a rose (posting without my name because the 'Troll' holds an NDA over my head for life).
Microsoft true intention is to kill the open source movement. They were behind the SCO's scheme to sue IBM and Linux users. That effort is failing so they are now trying to create another FUD for the free software movement.
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