The Register goofs on Microsoft's FAT patents

From Andrew Orlowski in The Register, Nov. 19, 2004:


-->Let's remember too that many software patents are thrown out by the judge. Microsoft's first foray into patent licensing was thrown out by the USPTO itself, when its right to the FAT patents was nullified on the basis of prior art. The explosion of patent filing activity at Microsoft doesn't necessarily indicate an explosion of creativity; and many may be even more fatuous than the FAT patent. For example today (thanks TheoDP) Microsoft has applied to patent the IS NOT operator.<--

Sorry, Andrew, but the action taken by the USPTO as to the FAT patents has NOT nullified or invalidated these patents as of this time. You need to get a better grip on US patent law.

Elsewhere, Andrew suggests that the Microsoft foray is to set up the WTO as an enforcement agent:

-->By adopting the WTO as its intellectual property enforcement proxy, Redmond believes it has a tactic that allows it to prevail without filing a single lawsuit. This has many advantages for Microsoft, as we'll see. But without filing a lawsuit, it's going to prove extremely difficult to convince anyone that the GPL poses a risk to their way of doing business: so many people now depend on it.<--

Andrew does not believe a non-litgious strategy will work in places like China:

-->In China, Linux is considered more expensive than Windows (a pirate copy of Windows, of course) because Linux comes on three CDs rather than one. For Microsoft to compete effectively in a fair market competition against Dragon Linux, it's going to have to produce a version of Windows much cheaper than the $26 cut down version offered in Thailand. It'll have to cut this by an order of ten, or fifty.

So it's in Microsoft's long-term strategic interests to make writing GPL software and using it illegal. Microsoft has already indicated that it can build up its IP patent stream without opening fire. In an interview published last week, Microsoft's director of licensing David Kaefer noted that Microsoft could no longer "look the other way" when companies used its IP, [here] But Kaefer also "... noted that [Marshall] Phelps built IBM's intellectual property business without filing a single lawsuit." [our emphasis] Phelps is the IBM attorney who built up its patent revenues from zero to a billion dollar business in the 1980s. He joined Microsoft last summer.

So how can Microsoft win a patent war without suing anyone? It's hard to conclude that it can, but perhaps that's not the goal. We can certainly see how hard the company wants to avoid a legal fight over the GPL. Tacking the GPL's validity head on in court carries lots of dangers.<--

Andrew captures the essence of the IBM patent strategy:

-->So like Mutually Assured Destruction, the true value of Microsoft's patent arsenal lies in the threat of their use, not their actual use. In any case, what Microsoft seems to be counting on is that the momentum behind the GPL will falter as companies become wary of deploying it.<--

On the politics of world trade:

-->There's much irony to this. The anti-globalization movement arrived in the United States with the extraordinary Seattle protests at the height of the dot.com boom. Panglossian dot com sages huffed and puffed and did their best to ignore it: after all, politics was dead: entrepreneurs were the revolutionaries, and any lessons that conventional economics could tell us were useless in the New Economy. Both markets, and the internet itself, they believed, were "self-correcting".

But the protesters weren't so much against trade, as they were for fair trade, and against a Washington Consensus that sees financial capital ride over the interests of labor everywhere, and developing economies in particular. This is the logic that reduces technically skilled white collar workers in the first world to the state of indentured coolies, and orders developing countries to institute "cost recovery" programs where poor parents must pay for their kids' education. (Former Nobel Prize Winner, and chief economist of the World Bank, Joseph Stiglitz describes how Uganda rebelled against this imposition, with the result that a generation of daughters received an education for the first time, rather than being forced to work on the land as child labor).

So Microsoft's adoption of the WTO as its enforcer may be the moment when the technical community realizes that everything is political, perhaps encouraging them to send their Ayn Rand novels down the crapper.<--