Thursday, July 07, 2011

Does Microsoft manifest schizophrenia in its patent policy?

A post titled Patent trolling with Microsoft begins with the text Sometimes I really can't figure out Microsoft. Does the left-side corporate brain not connect to the right? One recalls the IPBiz post
IBM's "apparent schizophrenia" on patent policy revisited
which included text:

IBM's Kappos had once discussed IBM's apparent schizophrenia on patent policy, and IBM's declararation in support of the AIPLA brief is another manifestation of IBM's staking out both sides of a single issue.

The Wilcox post on Microsoft concludes:

Mmmm. Microsoft CEO Steve Ballmer is quick to tout how his company advances innovation. Someone else could argue that Microsoft uses presumed intellectual property rights as a club to stifle innovation -- to pressure companies afraid of the software giant and its attorneys to pay ongoing license fees for untested patents over processes.

In it's Supreme Court case, Microsoft argued that the patent system needs reform. When it comes to software and some of the simple, obvious processes for which companies like Microsoft receive patents, I must agree.

Matt Rosoff wrote:

But smartphones are still relatively new, and the royalty lines for smartphone software are still being drawn. That's what the legal battles betwween Microsoft and Android vendors, Apple and Android vendors, Oracle and Google, Nokia and Apple, and so on, are all about. That's why Microsoft, Apple, and four other companies just paid $4.5 billion for a bunch of patents from Nortel -- to keep them out of Google's hands.
What really galls people is that Microsoft is a laggard in smartphones -- Windows Mobile was crushed by the iPhone and Android, and Microsoft's latest effort, Windows Phone 7, hasn't been able to gain any market share -- and it looks like Microsoft is just acting like a sore loser.
Plus, some of the patents that Microsoft is using in these royalty battles don't seem to have much to do with the mobile space -- like a patent related to file names granted way back in 1998, which Microsoft is using in its lawsuit against Barnes & Noble (which refused to pay Microsoft a license for using Android in the Nook).
But it doesn't matter. Blame the patent system, but Microsoft is just playing along with the assets it's got. Doing anything less would be a breach of duty to shareholders.

No, Matt, don't blame the patent system. The patent system promotes disclosure of information. If the claims are good, and infringed, then people should pay for prior inventions. If, on the other hand, Barnes & Noble doesn't infringe, maybe they can show it on summary judgment. "Big" patent litigations are nothing new. Even Abe Lincoln worked on one.

**In the general area of dubious positions on patent reform, recall Lex Luther's analysis:


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