Microsoft Hit With Another Multimillion Patent Loss in Texas
law.com
law.com
So they sue people who use stuff they've patented but don't actually use themselves.
Patent law badly needs to change.
The problem is not in NPEs. It's in bad patents. Ideas and processes should not be patentable. Period.
One problem IS that NPEs should not be allowed. There should be several requirements for a patent: 1. You must produce an actual, working prototype. 2. If some period of time (say, 2 years) elapses during which you're not physically producing copies of the device for sale, you should lose the patent right and it becomes public domain. Trademarks have to be defended to be kept; patents should have to be backed with production to be kept. 3. Patents should be non-transferable. Companies should not be allowed to own patents, only inventors; the inventor can give license to a company to make his invention.
Unless it's impossible to have such a prototype without a substantial capital investment that's incompatible with a small entity
> 2. If some period of time (say, 2 years) elapses during which you're not physically producing copies of the device for sale, you should lose the patent right and it becomes public domain
Maybe two years is too short if the invention needs more time to be put into production. Imagine you invent a deep space-propulsion device that only works in deep space - you may need a long time to test it in working conditions. All in all, it's a sensible idea.
> 3. Patents should be non-transferable. Companies should not be allowed to own patents, only inventors; the inventor can give license to a company to make his invention
That could make it difficult to sponsor research. Say I have a couple billion dollars in my budget and I would like to help you invent that deep-space propulsion system. Do you seriously expect me to allow you to own the invention after making it possible for you to test and build it?
I ask that because the startup where I work part-time does R&D for scientific equipment and we then license the technology to companies that are interested in possible manufacturing. Many companies would rather license a patent, and be the exclusive manufacturer than have to invest in the R&D themselves.
And by the way, many (hardware) technologies require a significant amount of time to bring from the conceptual stage to manufacturing stage, especially when you have limited, such as a startup might.
He's written a book, called Burning the Ships: Intellectual Property and the Transformation of Microsoft which makes for interesting reading:
If so, then the industrial revolution of the 19th century and much of our nown technological progress more recently would never have happened. Research conducted by B. Zorina Khan and Kenneth Sokoloff found that 2/3 of the 400 "Great Inventors" of the 19th century (including Thomas Blanchard and Thomas Edison) were NPEs.
In fact, what was hisorically unique about the American patent systemn was that it was the first in the world aimed agt encouraging ordinary workers, farmers and artisans to participate in inventive activity. So even though most such inventors didn't have the capital to manufacture their products and inventions themselves, they licensed their discoveries to large firms who could.
The trend continues today. In fact, that's why people like Roger Hoffman, perhaps the most prolific patentee of new environmental and anti-pollution technologies, are able to keep inventing -- i.e., by licensing their discoveries to larger firms.
Thank god we don't have these lawsuits in Europe.
Sorry to sidetrack, just annoys me. Living in Austin I'm seeing a flight of out-of-state workers looking for economic refuge from so many of the other bankrupt and poorly managed states. Texas has pretty sound economic policies and infrastructure if I don't say so myself.
Perhaps Texas gets unfairly attacked in other areas, but when it comes to patent lawsuits there really is a pretty serious problem there.
The main reason plaintiffs choose EDT is that its a "rocket docket". A rocket docket is a district where civil trials are speedy. There are a couple reasons for EDT currently being a patent rocket docket.
First, it has handled many patent cases, so it has judges who know how to handle patent cases. That came about because one particular judge, I believe Judge Ward, worked on a big patent case just before becoming a judge. He enjoyed the intellectual challenge (patent cases are among the most complicated), and so after becoming a judge, he jumped on any patent cases that showed up in his district, which in turn started attracting patent cases. Some of those would get assigned to the other judges, and so they developed expertise at handling patent cases. Hello, feedback loop.
Second, EDT doesn't have much crime. Criminal cases have higher priority than civil cases (because of the right to a speedy trial in criminal cases). In districts where there is a lot of crime, the courts are so backlogged with criminal cases (thanks, stupid "War on Drugs") that a civil case can take years to even get to preliminary hearings.
Whether you are a plaintiff or a defendant in a patent case, one thing you want is for it to be over as fast as possible. I've been involved in such a case, and even though I loath traveling, given the choice between going 2000 miles to Texas and having the thing over in a year, versus having it in the local district, and having it take five years, I'd pick Texas.
From a programmer's point of view, here's what its like when your employer is involved in a patent suit (on either side). First, you have to be careful in all recorded communications, because those are subject to discovery requests--so if you want to talk to another programmer about something even remotely related to the patented technology, you need to go actually talk in person, or over the phone--no email.
Second, there are discovery requests. You'll be required to produce everything relevant you have, and the lawyers expect you to be thorough. You have no idea how many places old code can hide until you've had to respond to a discovery request. (And its not just code--they want all documents relevant to the patented technology).
As your lawyers prepare their case, they will have questions. You'll get calls at 9 PM (in the timezone of the court that the suit is filed in, not your time zone) asking questions about source code. The lawyers need the answer to file a motion that is due in three hours. The code is 10 year old code that you haven't looked at in 9 years, and you weren't even the main developer. But you'd better be able to answer the question, 'cause a lot of money is riding on it.
Oh, and there are depositions. That's where the other side gets to have a couple days to ask you questions about that 10 year old source code, and also ask you about all kinds of emails and other things they received in discovery. Try this, check all your email for a week about your current projects, and ask yourself "is there any way a hostile lawyer could use this email to make me look bad?". For most, the answer is "yes". Some joking reference to a competitor that was funny at the time, say, is not at all funny when you are sitting in a room full of lawyers, being video taped as they ask you questions about it.
This is all very disruptive. It's barely tolerable for a year. Five years...ugh!
Aren't Microsoft lobbyists working hard to support bad software patents and patent trolling in Washington? The best thing for our industry would be that M'soft lose billions every year on these cases and shape up to support reform.