Microsoft's Changing Views On Patents; When You're Young You Need To Innovate; When You're Old You Need To Litigate

from the protectionism-at-work dept

Thursday morning, I noticed an odd opinion piece at News.com by Brad Smith, Microsoft's general counsel, celebrating patent law, despite the fact that the company had just been dealt a $1.5 billion setback in a patent dispute. I'd been noodling over what to write about it, because the most amusing thing was that he completely ignored the fact that Microsoft had only picked up the patent obsession recently -- and in its earlier years had been against patents. If anything, it reminded me that we keep seeing stories of young innovative companies who don't use patents, but who only become patent system fans when they have large established markets they want to protect from innovative competitors. In other words, when they're young, they compete by innovating. As they mature, they block the competition using protectionist patents -- which is exactly the opposite of the type of actions the patent system is supposed to encourage.

Either way, Tim Lee has done an excellent job highlighting Bill Gate's very prescient prediction on software patents juxtaposed with Brad Smith's claims on the importance of the patent system:
Brad Smith, Microsoft general counsel, 2007: "Protection for software patents and other intellectual property is essential to maintaining the incentives that encourage and underwrite technological breakthroughs. In every industry, patents provide the legal foundation for innovation. The ensuing legal disputes may be messy, but protection is no less necessary, even so."

Bill Gates, Microsoft CEO, 1991: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

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  1. identicon
    Doug, 11 Mar 2007 @ 3:59am

    Not necessarily contradictory

    I guess I haven't read the articles closely, but I don't see any contradictions after a quick read. Neither do I see a contradiction in the two quotes from Bill Gates. I've seen similar quotes on both sides of the issue on TechDirt. Patents can be good or bad, depending on how they are used.

    Patents are a two-edged sword. Appropriately used, they allow a company to take advantage of a new idea without fear that the idea will be immediately stolen by their competitors. Abused, they create a chilling effect that allows a patent holding company to take advantage of the hard work of another company that managed to make an idea successful. You should expect to see good arguments on both sides of the issue, perhaps even from the same person.

    I'm not surprised that Bill Gates is in favor of the general idea of patents but concerned about how they are used. Microsoft is builting up its own patent portfolio at the same time that it is fighting billion-dollar patent lawsuits in court. The general idea of patenting isn't completely wrong, but specific lawsuits might be way off-base.

    Quick question: how often do you see Microsoft in the news because it is suing another company over patents? You must admit that it isn't often.

    The way the current system works, if you're not sure whether something is patentable, it is best to apply for a patent just in case. That's the way the game is played. It would be foolish for Microsoft to not apply for patents as often as possible. It would be equally foolish for Microsoft to go after people infringing on some of its weaker patents.

    The real proof of "evil" or "not evil" is not based on whether you support patents or not. Neither is it based on whether you apply for a patent or not. The real proof is whether you sue somebody over some obvious or submarine patent.

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