Microsoft’s posturing about its patents being infringed by open source software have received an almost universal reaction of scorn and disbelief. Comparisons were drawn with SCO’s similar, but rather more desperate claims from a couple of years ago.
Microsoft talks a lot about innovation. It innovated the Xbox, several years after everyone else; it innovated the Zune, several years after everyone else; it innovated the GUI, several years after Apple (okay, and Xerox); it innovated Hotmail … oh, alright, it bought Hotmail. Bill Gates famously missed the internet revolution and then innovated the web browser, several years after Netscape.
But the company has a lot of patents, which, no doubt, are very innovative. Well, maybe not.
The idea of being able to patent software is a controversial one. Software is, quite rightly, protected by copyright. That’s why we talk about software publishing.
In the US the floodgates opened to patenting software in the early 1980s and the field was clearly established and formulated by the 1990s. Patentability has been extended to the formulation of business processes in software. But patents still have to pass two key tests: whatever is patented has to be non-obvious; and it can’t already have been invented.
There are severe doubts about whether many of the software and business process patents will stand up to court challenge, however. The patent free-for-all of the 1990s means issues of prior invention and non-obviousness are common.
Amazon, for instance, thought it had its one-click patent sewn up and was merrily demanding royalties for it. Then the company pissed off Kiwi Peter Calvely by delivering some books late. Calvely extracted his utu by trawling through patent office records and found what appeared to be a prior patent. The issue is now being re-examined.
For a time and perhaps still, the US Patent Office was also severely understaffed and unable to give many patent applications the kind of scrutiny they deserved. In effect, that’s a mess the courts will now have to clean up.
And then there’s the even bigger question about whether patents stimulate or inhibit innovation.
But the immediate problem with Microsoft’s recent claims that 235 of the company’s patents have been infringed is the company will neither put up nor shut up. Microsoft won’t say — yet — which patents it is talking about. There is a conspicuous lack of detail in the allegations.
The company says it’s concerned about interoperability and is taking a proactive approach to the issue.
It is what the customers want, it says. Microsoft is both innovative and customer-focused.
One of the most interesting comments to come out of the whole debate comes from one of Microsoft’s targets.
Mark Shuttleworth, the founder Ubuntu Linux distribution, wrote that Microsoft would soon find itself threatened by software patents.
“I’m pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents,” he wrote. “Why? Because Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity.”
In the meantime, though, the company that brought us vapourware has innovated yet another new product: scareware (oh, okay, a couple of years after SCO).