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Microsoft Won't Assert Web Services Patents

kdawson posted about 8 years ago | from the so-don't-sue-me dept.

155

Andy Updegrove writes, "Microsoft has just posted the text of a new promise not to assert its patents with respect to 35 listed Web Services standards. The promise is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema, with two important improvements intended to make it more clearly compatible with open source licensing. Those changes are to add an explicit promise not to assert any relevant patents against anyone in the distribution chain of a product, from the original vendor through to the end user; and to clarify that the promise covers a partial as well as a full implementation of a standard. It's all part of a recent wave of such pledges made by companies such as IBM, Nokia, and Oracle, and a significant shift in how Microsoft is dealing with open standards."

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Uhm... (0, Offtopic)

scubasteve2003 (1001214) | about 8 years ago | (#16092552)

Why is the banner red for this story? Is this part of the new discussion system?

Re:Uhm... (1, Funny)

Anonymous Coward | about 8 years ago | (#16092578)

Itsatrap

Re:Uhm... (2, Funny)

McFortner (881162) | about 8 years ago | (#16092601)

Itsatrap
Get an axe!

Re:Uhm... (2, Funny)

Anonymous Coward | about 8 years ago | (#16092592)

The banner is not red.

You have the killer eye fungus.

You are bleeding into your eye.

Soon it will eat your brain.

Why (-1, Troll)

Anonymous Coward | about 8 years ago | (#16092567)

Why keep the patents if you're not going to use them? It's just blatent patent hogging.

Why not? (4, Insightful)

VanessaE (970834) | about 8 years ago | (#16092662)

Why keep the patents if you're not going to use them? It's just blatent patent hogging.

As much as software patents may be a horrible idea, and as much as people here generally hate Microsoft, maybe this is a *good* step? The company has pledged publicly that they won't actually assert their patent rights... and since these are patents we're talking about, it means that noone else can either.

Maybe it's just the sort of protection that the open source movement needs so that we *can* innovate without having to jump through a bunch of hoops or worry about facing legal action?

Re:Why not? (0)

Anonymous Coward | about 8 years ago | (#16092775)

Then why not just patent it through some sort of common patent or something - so that they cant change their mind.

Re:Why not? (0)

Chris Burke (6130) | about 8 years ago | (#16092783)

The company has pledged publicly that they won't actually assert their patent rights... and since these are patents we're talking about, it means that noone else can either.

Unless this pledge is legally binding, I personally don't find it very reassuring. IBM's pledge I take to be worth something because of IBM's massive investment in open source.

Maybe it's just the sort of protection that the open source movement needs so that we *can* innovate without having to jump through a bunch of hoops or worry about facing legal action?

But we will, so long as software patents exist. Microsoft and IBM have large portfolios, but they aren't the sole holder of software patents. It's like clearing two fields of mines in Afghanistan. Those two may be safe, but you still need to cross dozens of others to get where you are going.

I have a suspicion that the real purpose of these pledges is to stave off patent reform. In as much that it actually helps free software developers, that's fine, but it avoids the real issue.

Re:Why not? (2, Interesting)

Jerf (17166) | about 8 years ago | (#16092917)

Unless this pledge is legally binding, I personally don't find it very reassuring.
I can not categorically tell you it is; IANAL and I only follow patent and IP law for fun.

But there is a doctrine of laches [wikipedia.org] , which has been applied to patents before. The basic idea is that the person bringing the suit deliberately held the suit until the moment of maximum damage, rather than bring it when the grounds for the suit was discovered.

It has been successfully used as a defense against submarine patents, where the patent's enforcement was merely delayed. I would imagine that using a laches defense would be even stronger when the prosecution is on record as having pledged to not use the patent in litigation. It would take one asshole of a judge or one incompetently-presented argument to lose on that point.

It's worth reading the Wikipedia page; I'm not completely explaining why I think this would be covered all the more strongly, partially because, well, there's the Wikipedia page. It'd just be redundant of me.

Additionally, one could argue implied contract [wikipedia.org] pretty successfully, too.

Last, and assuredly not least, my God, the PR disaster this would be. It's hard to imagine what 'infringement' would possibly be worth the PR disaster.

Contrary to popular belief, merely having a lot of lawyers does not buy you victory; that's just cynicism, not an informed belief. I really don't think Microsoft is going to be able to weasel out of this later.

Re:Why not? (2, Informative)

DragonWriter (970822) | about 8 years ago | (#16092976)

The doctrine of laches is only applicable to delay, a promise not to enforce would not raise an issue of laches, though it might raise an issue of promissory estoppel, which might be a bar to enforcement in some cases, and in others the promise might simply limit the available remedies.

Re:Why not? (1)

Imagix (695350) | about 8 years ago | (#16092880)

And if they simply publish the stuff, and release the patent into the public domain, noone else can make patent claims on it either.

Re:Why not? (2, Interesting)

DragonWriter (970822) | about 8 years ago | (#16092932)

As much as software patents may be a horrible idea, and as much as people here generally hate Microsoft, maybe this is a *good* step? The company has pledged publicly that they won't actually assert their patent rights... and since these are patents we're talking about, it means that noone else can either.
The problem with such a pledge is that, as its not a contract, or even a license, its dubiously enforceable. If they wanted people to be reasonably free to use the patent, they could make an offer of a no-cost license with clear conditions. As it is, it creates a big cloud of uncertainty.
Maybe it's just the sort of protection that the open source movement needs so that we *can* innovate without having to jump through a bunch of hoops or worry about facing legal action?
No, its precisely not the kind of protection that the open-source movement needs to succeed in the enterprise.

Re:Why (0)

Anonymous Coward | about 8 years ago | (#16092701)

So Joe Blow doesn't obtain a frivolous patent on the same thing.

Re:Why (1)

Excelsior (164338) | about 8 years ago | (#16092847)

It's not patent hogging. Companies today have to apply for patents, even when they don't plan to enforce them, for purely defensive reasons. If you don't apply for the patent first, someone else will come knocking at your door who did.

The thing about this article that I don't understand is that the part about it being "a significant shift in how Microsoft is dealing with open standards." (emphasis mine) AFAIK, Microsoft has never sued anyone for patent infringement, and has an unwritten policy against it. The only difference here is that they are writing it down. Even the post states it "is similar to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema". So again, how is this a significant shift?

Re:Why (1)

DragonWriter (970822) | about 8 years ago | (#16092916)

Furthermore, IIRC, patents come with an affirmative duty to enforce the patent; failure to do so can lead to loss of the patent. So a pledge not to "assert" (i.e., enforce) the patent (contrary to, say, an open public conditional offer of a free license to use the patent) might well jeopardize the patent itself.

Re:Why (1)

EPAstor (933084) | about 8 years ago | (#16093025)

That's completely false... you're thinking of trademarks. There's no legal obligation to enforce a patent.

Re:Why (1)

DragonWriter (970822) | about 8 years ago | (#16093065)

I know its true of trademarks, but I wasn't thinking of them. I'm pretty sure its true of patents as well.

Re:Why (1)

nuzak (959558) | about 8 years ago | (#16093137)

You seem to know your stuff, judging from your other posts on this thread ... but the only affirmative duty I can find with respect to patents has to do with prior art searches and "due care" to not infringe other patents when one has "notice" of a patent.

Not enforcing a specific case of infringement might entitle the defendant to equitable relief (laches), and I'm also fairly sure there's a duty to mitigate damages before seeking relief (not sure what that's called, now you really know IANAL). But I couldn't find any other affirmative duties for patents ... though I suppose I could do better than using Google as my law library :)

Re:Why (1)

amliebsch (724858) | about 8 years ago | (#16093578)

I'm also fairly sure there's a duty to mitigate damages before seeking relief

It's called - get ready for this - "mitigation!"

Seriously, though, I Am Not An IP Lawyer, but I am an attorney who sat through a couple of IP law classes, and I believe that you are 100% correct - there is no duty to defend a patent; of course this is not legal advice.

Re:Why (1)

TekPolitik (147802) | about 8 years ago | (#16093154)

I know its true of trademarks, but I wasn't thinking of them. I'm pretty sure its true of patents as well.

It is not, although in the right circumstances, laches might apply (references can be found in other comments to this story).

Protection against patent suits (2, Insightful)

I'm Don Giovanni (598558) | about 8 years ago | (#16093360)

A good reason to patent something you "invented", even if you have no intention of enforcing them yourself, is to prevent some small company that does nothing *but* patent from patenting your "invention" and coming after you. Even if you had "prior art", the case costs money to actually win, so you might feel compelled to settle to make it go away.

Microsoft normally doesn't sue over patents, but they're the biggest target for these patent-specialist companies (since MS has the most money, and potential suers think MS would be more likely to settle since they can do it without missing the cash), so they patent their stuff for their own protection.

The question is... (0)

Anonymous Coward | about 8 years ago | (#16092570)

can they be believed?

It is a bit like a person with a history of spouse abuse promising that he wont do it anymore...

Re:The question is... (0)

Anonymous Coward | about 8 years ago | (#16092579)

What patent "abuse" does MS have a history of?

Lets be sure to praise em for doing good (4, Insightful)

jmorris42 (1458) | about 8 years ago | (#16092576)

Can't see any downside to them making such a pledge, so lets all be sure to be unreserved in our praise. Who knows, maybe we can encourage more of the same sort of behaviour. And not only just from Microsoft, lots of patents out there held by lots of companies, many of them potential mortal threat.

Yea Microsoft!

See, my tongue didn't burst into flames or anything. :)

Re:Lets be sure to praise em for doing good (2, Interesting)

Em Adespoton (792954) | about 8 years ago | (#16092615)

I'm curious though... what do these pledges actually mean? Are they legally binding? Can they be rescinded at some point in the future? If these pledges really mean that the patents are unenforcable until they expire, I'm all for it... but given MS's history, I want to be absolutely certain on this before doing anything that messes with these now well-known patents (can't claim ignorance).

Re:Lets be sure to praise em for doing good (2, Interesting)

pthisis (27352) | about 8 years ago | (#16092694)

I'm curious though... what do these pledges actually mean? Are they legally binding?

In particular, anyone have any idea to what degree does this constitute an estoppel against future patent litigation against web services implementations?

http://en.wikipedia.org/wiki/Estoppel [wikipedia.org]

Re:Lets be sure to praise em for doing good (2, Interesting)

DragonWriter (970822) | about 8 years ago | (#16092961)

The question of whether it raises an estoppel (presumably, here, a promissory estoppel) depends on, among other things, the degree to which the reliance by the unlicensed user of the patent on the pledge to not enforce the patent is "reasonable", as well as consideration of whether injustice can be avoided by any other means than enforcing the promise.

Re:Lets be sure to praise em for doing good (4, Insightful)

TekPolitik (147802) | about 8 years ago | (#16093088)

The question of whether it raises an estoppel (presumably, here, a promissory estoppel) depends on, among other things, the degree to which the reliance by the unlicensed user of the patent on the pledge to not enforce the patent is "reasonable", as well as consideration of whether injustice can be avoided by any other means than enforcing the promise.

As a statement of the law this is spot on, but it would have been more helpful to the person asking the question if you had applied it to a sample set of facts.

Note the requirement for reliance - this means you must at least have been aware of the promise. You (or at a minimum somebody you claim through) must have then acted, in reliance on the promise, in such a way that you would suffer a detriment if Microsoft resiled from the promise.

If, being aware of the promise, you produce any non-trivial amount of work depending on the patents, chances are that a court is going to be willing to impose a promissory estoppel. In the case of GPL software, somebody, somewhere is going to rely on this promise, and a consequence of this is there will be GPL software out there that effectively gives you something that should support an estoppel. It's going to be very difficult, if not impossible, for Microsoft to renege on this.

It is fairly safe* to take them at their word here.

* - usual disclaimers apply.

Re:Lets be sure to praise em for doing good (1)

TekPolitik (147802) | about 8 years ago | (#16093193)

In the case of GPL software, somebody, somewhere is going to rely on this promise, and a consequence of this is there will be GPL software out there that effectively gives you something that should support an estoppel.

Having just read the text of the Microsoft promise, there is an argument (although not a strong one) that this may not be the case, however if that argument is successful, it would involve claiming that the promise as made is a contractual offer and so reliance on the promise while complying with its conditions would give rise to a contract. All you have to do to accept the promise as a contract is:

  1. acknowledge ... that no Microsoft rights are received from suppliers, distributors, or otherwise in connection with this promise; and
  2. not file, maintain or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of such Covered Specification.

Acknowledgement... mental check. Not patent whoring... no problem.

Re:Lets be sure to praise em for doing good (3, Informative)

Kesch (943326) | about 8 years ago | (#16092866)

Microsoft irrevocably promises not to assert...


It does appear to be legally binding by the tone of the analysis in the TFA.

You pretty much automatically have been granted a license to the listed patents and the only term of use is that you lose the protection if you try to file a patent infringement lawsuit against Microsoft concerning the standard.

Re:Lets be sure to praise em for doing good (1)

Zeinfeld (263942) | about 8 years ago | (#16093115)

The 'promise' of a license made in the context of a standards process is almost certain to be considered binding. The standard is agreed on the basis of the promise. The problem that people have been facing is that the traditional IETF reciprocal licensing terms have turned out to be almost certainly unenforceable when they allow for a sublicensing term as people looked at the SCO case. Even if they are enforceable in theory they are not an effective way to pre-empt a case. A lot of time was spent in rather unproductive discussions on how to fix the license. It was only recently that people started to realize that we didn't need to have a license at all and some form of promise of a license would be sufficient. I guess we could go back and see if Microsoft would agree to offer their SenderID IPR on the same terms now that we have worked out the fix.

Re:Lets be sure to praise em for doing good (0, Offtopic)

rolfwind (528248) | about 8 years ago | (#16092686)

Um, wasn't Microsoft in the group of companies that was pushing Software Patents abroad (EU)?

Why should we praise them for simply promising not to enforce a small subset of their software patents when they are trying to push the whole evilness of that system about?

It seems like they are taking a mile, and giving back a foot.

Re:Lets be sure to praise em for doing good (0)

Anonymous Coward | about 8 years ago | (#16092777)

Don't praise them because the specs are still closed! They are not freely available. You still have to have a license to obtain them. If Microsoft was serious, they would make the specs available.

Re:Lets be sure to praise em for doing good (1)

dpiven (518007) | about 8 years ago | (#16093123)

It's developed quite a fork, though :-)

Re:Lets be sure to praise em for doing good (1)

Plutonite (999141) | about 8 years ago | (#16093194)

See, my tongue didn't burst into flames or anything. :)

Wait until morning.

Re:Lets be sure to praise em for doing good (2, Funny)

moochfish (822730) | about 8 years ago | (#16093314)

Anybody up for some hardcore skiing? I hear there's record snowfall in Hell right now!

can we get that signed in blood?? (0, Troll)

RobertLTux (260313) | about 8 years ago | (#16092580)

Who wants to bet that after some number of months MicroSoft will find some sort of loophole?

Re:can we get that signed in blood?? (0, Troll)

dpreston (906415) | about 8 years ago | (#16092802)

it's just a "promise", like "we promise to get vista out in X days", so it's very easy to find a loophole...."haha WE FOOLED YOU"

So, why? (2, Interesting)

McFortner (881162) | about 8 years ago | (#16092588)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

"Pay no attention to the Patent Lawyers behind the curtains...."

Re:So, why? (0)

Anonymous Coward | about 8 years ago | (#16092641)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

Because then you have the power to choose how/if the patent is enforced. In other words, you obtain the patent so no one else can. (Yeah I know that in the US it's first to invent, not first to file, but we all know how well that works in reality...)

Why not a license (1)

rsilvergun (571051) | about 8 years ago | (#16093027)

instead of a pledge. A pledge is all nice and pretty, but a good 'ole legally binding license would be even better, and would remove any doubts (since it wouldn't matter what MS decided to do later on).

Re:Why not a license (2, Interesting)

Rik van Riel (4968) | about 8 years ago | (#16093200)

A pledge is a lot nicer, since a license would need to be signed and returned by every recipient of software covered by the specifications.

This, in turn, creates issues where somebody who distributes free software cannot automatically pass the license on to the people dowloading the software.

A universal pledge, that covers everybody, is a lot more practical.

Re:So, why? (1)

CaymanIslandCarpedie (868408) | about 8 years ago | (#16092644)

Because if you don't have the patent, someone else will get it and enforce it on you.

Re:So, why? (1)

CoffeeDregs (539143) | about 8 years ago | (#16092645)

Defensive manuever: if Microsoft has the patents, then Sun can't invent the same thing and prevent Microsoft from conducting its business. Patents don't generally yield revenue, but no one in their right mind will sue IBM for patent infringment! because it's a sure bet that IBM has tons of patents covering everything from your toilet paper to your processor architecture.

Re:So, why? (1)

ClosedSource (238333) | about 8 years ago | (#16093603)

Sometimes when a patent doesn't directly yield revenue is when it is the most destructive to competition. Patents are often used to keep potential competitors out of the marketplace for the life of the patent.

Re:So, why? (1)

inviolet (797804) | about 8 years ago | (#16092648)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

They collect patents for self-defense against the many new IP predators lurking out there.

There are companies amassing thousands of patents, with which to bludgeon an ill-gotten profit out of established product lines.

Microsoft et. al. hold whatever patents they can in order to have ammunition for the day the sharks come knocking.

Re:So, why? (1)

LaughingCoder (914424) | about 8 years ago | (#16092650)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

Easy. So somebody else doesn't patent it and prevent you from using it, or extort licensing fees from you.

So, why?-OSS patents (0)

Anonymous Coward | about 8 years ago | (#16093284)

So THAT'S why OSS has a patent porfolio.

Re:So, why? (1)

RockyMountain (12635) | about 8 years ago | (#16092742)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

One reason is to preempt anybody else from patenting the same idea.

Of course, you could do the same thing by just publishing the idea. But filing a patent buys you time. Publish the data without patenting it, and anyone can use it right away. Patent it, and keep your options open -- you can always decide to open up royalty-free licencing later.

(I'm not suggesting this is MS's reason. Just giving an example of one reason for doing this.)

Protection (1)

EmbeddedJanitor (597831) | about 8 years ago | (#16093051)

Sometimes you patent something to prevent someone patenting the same, or similar, thing later and gouging you for it.

Also, if there is similar prior art, then getting a patent shows that yours is sufficiently different to not infringe.

Re:So, why? (2, Interesting)

Zeinfeld (263942) | about 8 years ago | (#16093175)

So, can somebody tell me why you would have a patent if you are not going to enforce it?

To stop some bastard from reading the spec and patenting it.

This has happened to me a very large number of times. I am told there are roughly 100 US patents on work I have done filed by other people after the work was published.

So now I patent ideas aggresively as the only way to keep them open.

I do not worship at the shrine of RMS. I do not beleive that software patents are always a bad thing. The RSA and Diffie-Hellman patents were clearly for publishing innovative work.

I think that 95% of the issues open source has with software patents would be solved if the USPTO stopped handing them out like smarties to anyone who asks. Software is not the only area where the USPTO is causing serious problems. I wrote an essay [blogspot.com] proposing reforms.

Re:So, why? (1)

John Hurliman (152784) | about 8 years ago | (#16093356)

So someone else doesn't file the patent and enforce it.

Re:Have a reality check (1)

sillybilly (668960) | about 8 years ago | (#16093491)

It's like telling a dog, that doesn't want a collar and chain around it's neck, "Here doggie, doggie, let's put this chain on your neck, and we promise we ain't gonna yank it! Good dog!" What's wrong with dogchains if there is a promise they will never be used and abused? They are just like not having a collar around your neck, after all, the covenant is legally binding unless - unless, aha, I knew there was a catch! - unless you inspect the small print, which is subject to interpretation by lawyers in a courtroom at some later time. But baby steps first, let's get the collar on your neck, today, let's get over that step first, then we deliberate over whether we have the right to yank it or not. OK? Com'ere doggie! Good daaawg!

motivation behind this? (1)

jetpeach (704759) | about 8 years ago | (#16092591)

Can people highlight the reasons behind this move? I see several possibilities being: positive PR and maybe the not needing to rewrite IE again if a standards war happens. But what else? I doubt the above are the strongest motivations.

Re:motivation behind this? (1)

j00r0m4nc3r (959816) | about 8 years ago | (#16092623)

Maybe it's because they know they are BS patents and don't want the bad PR of squashing small companies for infringement. I don't believe for one second that MS has any benevolent intentions from this.

Re:motivation behind this? (1)

Andy Updegrove (956488) | about 8 years ago | (#16092633)

Its not really that surprising, because almost all Web Services standards were proposed by strange-bedfellows Microsoft, IBM and BEA, so Microsoft wants these standards to be broadly adopted. That said, it's still good news that they're making them easier to implement if you think that Web Services are a good thing. It also helps promote the non-assertion concept, and encourages others to use the same device. Net net, good news, IMHO. - Andy

Re:motivation behind this? (4, Insightful)

rifftide (679288) | about 8 years ago | (#16093047)

Historically, Microsoft has not been a big proponent of winning through patents, either by preventing competition or extorting usage fees. They like to win in other ways. The big software houses see Web Services as the key towards the next great era of business software, and they all like their chances. But that only happens if they can avoid getting stuck in a mire of standards dueling and IP litigation (see: Blu-Ray/HD DVD).

Notice that the pledge includes the standard defensive measure - if you sue Microsoft for infringing one of your patents, it's void. But it was carefully crafted so that only Microsoft code used to directly implement one of the specifications is covered by the defensive clause - not all of Windows and MS Office for example. That's perhaps the most impressive part of the pledge.

Reminds me... (-1)

k4_pacific (736911) | about 8 years ago | (#16092598)

This announcement reminds me with an encounter I had with the school bully during grade school for some reason.

Bully: Come over here.
Me: No! You'll hit me!
Bully: No I won't.
Me: Yes you will.
Bully: No I won't, I promise.
Me: Uh, okay.
Bully: (PUNCH!) Sucker!

Re:Reminds me... (3, Funny)

Archangel Michael (180766) | about 8 years ago | (#16092715)

I read your post as

Billy: Come over here.
Me: No! You'll hit me!
Billy: No I won't.
Me: Yes you will.
Billy: No I won't, I promise.
Me: Uh, okay.
Billy: (PUNCH!) Sucker!

Then why get them? (0, Redundant)

amigabill (146897) | about 8 years ago | (#16092602)

If you're going to promise not to assert a patent, then what's the point of getting it in the first place?

Re:Then why get them? (1)

clivingston (1002098) | about 8 years ago | (#16092666)

So nobody else can patent the same thing and then sue microsoft for infringement on something they developed. It's a CYA (cover your a**) patent, as many are nowadays.

Re:Then why get them? (1)

initialE (758110) | about 8 years ago | (#16093259)

Covering your ass is much more cheaply established (not to mention more trusted) simply by publishing your idea then citing it as prior art.

The Monetary Value? (1)

eldavojohn (898314) | about 8 years ago | (#16092670)

I think a lot of companies (like the companies mentioned in this article) obtain patents but don't hire patent trolls to go about flexing their lawsuit muscles.

What's the point of the patent? Well, especially on standards, you get to maintain complete creative control over the direction of the standard and it's kind of a safety to always make sure everyone depends on you.

I also think that companies might consider patents as an asset when they calculate their balance sheets. I have nothing to back that up but since patents are continually bought and sold (see Intellectual Ventures [com.com] ) so they must be assets to some degree. This looks very good to investors & stockholders.

Afterall, Microsoft might not use these patents but what happens if they sell them for a huge chunk of change after everyone is using the technology? Massive lawsuits?

Re:Then why get them? (0)

Anonymous Coward | about 8 years ago | (#16092772)

Plus if you work at Microsoft, you get a nice little bonus if you can patent something in Microsoft's name... it does give Microsoft some "monetary" value on paper.

Microsoft HAD to do this (2, Interesting)

Audent (35893) | about 8 years ago | (#16092617)

because its patent (on XML in this instance) was soundly thrashed about and it had to re-word it thus reducing its impact.

Story on it here: http://computerworld.co.nz/news.nsf/UNID/E6D44C460 0041E39CC2571D4007DF1C8 [computerworld.co.nz]

snip
The patent will no longer cover the XML file formats that Microsoft is using and therefore anyone is free to interoperate with Microsoft file formats without fear of patent litigation from this particular patent
snip

The prior art around AbiWord's handling of XML basically did for the original patent Microsoft was after. The new one doesn't really have the same issues for the industry at large.

Dialog (3, Interesting)

eldavojohn (898314) | about 8 years ago | (#16092622)

Act One

Setting: 1990s

Developer: "Man, java is the shit!" (hey, it was the 90s, everybody spoke like an idiot)

Microsoft: "Then you'll love J++, it's more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."

Developer: "Cool, sport me a copy!"

Microsoft: "Not so fast, it's $300 a personal license."

Developer: "No thanks."

(Scene ends)

Act Two

Setting: late 1990s

Developer: "JSP's are stupid awesome."

Microsoft: "Then you'll love ASPs, they're more efficient and other stuff that we don't need to prove. Plus, it will soon be used by everyone everywhere."

Developer: "Cool, where do I get the compiler for VB or this .NET stuff?"

Microsoft: "Well, you can make ASPs for free and stuff and almost everyone has IIS anyways ... but to make applications that do anything at all you need our libraries. You need to buy Visual Studio and we're afraid it's a bit pricey ..."

Developer: "No thanks."

(Scene ends)

Act Three

Setting: the oughts

Developer: "XML makes my life easier but it's not standardized."

Microsoft: "Use our standard, it's the best! Uh, it's kind of sorta free. You can edit it easy and use it. *cough* but we've got some patents *cough* so go ahead and use it."

Developer: "Wait, what was that last part?"

Microsoft: "Aw, christ, well, to stop everyone from slowly eating away at our dominant market, go ahead and use it. We promise not to sue but no backsies on these patents!"

Developer: "What the fsck, Microsoft, get it through your heads, we just want to get along. Stop charging us for everything (even standards). Change your business model."

(Scene ends, developer storms off to go play nice with the Sun & the rest of the world)

Re:Dialog (1)

Threni (635302) | about 8 years ago | (#16092722)

>Developer: "Cool, where do I get the compiler for VB or this .NET stuff?"
>Microsoft: "Well, you can make ASPs for free and stuff and almost everyone
>has IIS anyways ... but to make applications that do
>anything at all you need our libraries. You need to buy Visual Studio
>and we're afraid it's a bit pricey ..."

Uh, I think you meant:

Microsoft: From here: http://msdn.microsoft.com/vstudio/express/ [microsoft.com] It's free.

Express Wasn't Around Back Then (0)

Anonymous Coward | about 8 years ago | (#16092746)

Microsoft: From here: http://msdn.microsoft.com/vstudio/express/ [microsoft.com] It's free.
Nice try, as of this summer it's free. Notice how the setting to that scene was the late 90s.

They're a good decade too late.

Re:Express Wasn't Around Back Then (1)

Threni (635302) | about 8 years ago | (#16092862)

> Nice try, as of this summer it's free.

It's been free for ages.

>Notice how the setting to that scene was the late 90s. .NET was around in the late 90s?

>They're a good decade too late.

Too late for what? I thought Microsoft was the most successful software company of all time?

Re:Express Wasn't Around Back Then (1)

DragonWriter (970822) | about 8 years ago | (#16092999)

It's been free for ages.


The Visual Studio Express editions have been free since mid-2005, originally as a limited free-for-1-year program, that was extended to be free forever in April of this year.

I've heard of "internet time", but calling that "for ages" just seems, well, a bit odd, even so.

Re:Express Wasn't Around Back Then (1)

BradleyUffner (103496) | about 8 years ago | (#16093278)

the .net compiler has ALWAYS been available for free as part of the .NET SDK. you don't get Visual Studio with it, but you can compile and make your own .net applications for free, without paying for any software.

Re:Dialog (1)

jZnat (793348) | about 8 years ago | (#16093642)

Too bad that link didn't exist in the late '90s. Visual Studio was released free of charge only recently (like the last year or two).

Re:Dialog (2, Insightful)

CCFreak2K (930973) | about 8 years ago | (#16093248)

...go play nice with the Sun...

Sometimes I think the only reason Sun Solaris is open is because they'd be dead if not. I also think the only reason OpenOffice is open is because Microsoft Office isn't.

Heres a thought (2, Interesting)

Anonymous Coward | about 8 years ago | (#16092629)

Maybe they should sign them over to a 3rd party such as the FSF instead of making nonbinding promises.

A promise (0)

nurb432 (527695) | about 8 years ago | (#16092660)

Is easily broken once you have gained the upper hand.

There is no law against: " we changed our mind" ( + marketing spin )

Re:A promise (0)

Anonymous Coward | about 8 years ago | (#16092752)

Sure there is, it is called estoppel. Once you tell a potential infringer that you won't sue them if they infringe your patent, that is powerful evidence if you do sue them. You can't set up an "infringement trap."

Re:A promise (2, Informative)

rewt66 (738525) | about 8 years ago | (#16092823)

Two words: promissory estoppel.

IANAL. I'm not even sure I spelled either word right. But the thing is, legally, if you make a promise, and I act on that promise, you can't turn around and sue me for acting on your promise.

OK, it's a bit muddier than that. You can still sue me. Anybody can pretty much sue anybody for anything. But you can't win the lawsuit, and losing can be painful enough that most people don't play such games.

It's actually even muddier than that. You can't win the lawsuit, unless there's something else going on, like I'm also infringing on some other patent that you didn't promise not to sue on. So don't blindly take this and run without actually understanding what Microsoft said. It may go less far than you expect. But that paranoia aside, it's actually a really cool thing for MS to do (and I don't say that very often).

Re:A promise (1)

DragonWriter (970822) | about 8 years ago | (#16093017)

IANAL. I'm not even sure I spelled either word right. But the thing is, legally, if you make a promise, and I act on that promise, you can't turn around and sue me for acting on your promise.

OK, it's a bit muddier than that. You can still sue me. Anybody can pretty much sue anybody for anything. But you can't win the lawsuit, and losing can be painful enough that most people don't play such games.


Its actually quite a bit muddier than that. Under the doctrine of promissory estoppel, the promise is only enforceable where reliance on it is reasonable, and where no other means to avoid injustice is available; exactly how that works out in any particular case can be murky. Here, I can see Microsoft not being allowed to recover damages in a patent, and maybe being unable to prevent continued distribution or use of existing product using the patented technology, but being allowed to forbid development of additional technology.

Further, once the promise was publicly revoked, further reliance on it would no longer be reasonable. The claim that the promise is "irrevocable" probably has no weight, since it is completely gratuitous.

Re:A promise (1)

TekPolitik (147802) | about 8 years ago | (#16093139)

the promise is only enforceable where reliance on it is reasonable

I'm trying to think of circumstances where reliance on a promise would be found to be unreasonable. Do you have a case that shows this? I suspect that if reliance was unreasonable then it wasn't a real promise in the first place, such as when the person has "promised" something over which they have no control or has used the word in circumstances where it should not be expected to be taken seriously (such as in a campaign for political office).

Re:A promise (1)

RevMike (632002) | about 8 years ago | (#16093187)

Two words: promissory estoppel.

Actually, two different words: Unilateral Contract.

Microsoft is entering into an enforceable contract. This isn't grey area. Anyone who accepts this offer by building an application that utilizes the patented technology is untouchable. This is well established law.

Re:A promise (1)

amliebsch (724858) | about 8 years ago | (#16093538)

Interesting...what do you see as the consideration from the acceptor of this unilateral contract?

Re:A promise is as good as gold (2, Informative)

Russ Nelson (33911) | about 8 years ago | (#16093536)

Uhhhh, actually, there is a legal doctrine called "reliance". If somebody says "I won't do this even though the law lets me", and you rely on their promise, then they have very little chance of successfully doing it. The judge will throw their case out of court so fast it will go into orbit.

Sweet (1)

PhotoGuy (189467) | about 8 years ago | (#16092682)

Nice. A bit of assurance from a voice I trust. I can sleep well now. Good night.

Breakable Pledges (4, Interesting)

Doc Ruby (173196) | about 8 years ago | (#16092723)

What legal binding do these "pledges" have? Why not back up the pledges by just releasing the patent into the public domain?

Re:Breakable Pledges (1)

fmoliveira (979051) | about 8 years ago | (#16092956)

If you sue MS for any of your patents, then this pledge is void for you and they can sue the hell out of you. Its a good way to disencourage anyone for sueing them with their patents. In other slashdot comments, its said that MS never sued anyone with patent infringment, and that pledge has legal value.

Re:Breakable Pledges (2, Informative)

Anonymous Coward | about 8 years ago | (#16092993)

When you give your word and publish it in durable form, that's pretty much binding. It's not a contract (which requires explicit mutual agreement and thus EULAs don't contain the word "contract"), but it hardly constitutes tresspass when you put out the welcome sign. They could conceivably revoke future uses of the patent at some arbitrary point, but it'd be a pretty hard sell to a judge, let alone a jury to sue anyone over it.

Re:Breakable Pledges (0)

Doc Ruby (173196) | about 8 years ago | (#16093176)

Microsoft is a corporation, it doesn't have a "word". I want a lawyer or qualified amateur to tell me that pledge is binding. And I want them to explain why MS (and the others) don't just release the patents into the public domain.

Re:Breakable Pledges (1)

amliebsch (724858) | about 8 years ago | (#16093552)

And I want them to explain why MS (and the others) don't just release the patents into the public domain.

The reason for that is obvious: by releasing it to the public domain, they would no longer be able to use it defensively, which is clearly of value to them.

Re:Breakable Pledges (1)

Prof.Phreak (584152) | about 8 years ago | (#16093080)

What legal binding do these "pledges" have?

None. Not only that, but if these patends ever end up in non-Microsoft's hands (it -could- happen; say in 10 years), then that party won't even care that Microsoft has promised not to fight.

Good, positive attitude (4, Insightful)

mangu (126918) | about 8 years ago | (#16092756)

Microsoft's position is that of someone in a warehouse full of gasoline cans. Let's not start throwing lighted matches around.


It's a positive step, because it shows they can act rationally, having had their share of trouble from software patents. It also goes to show that, if software patents are bad for Microsoft, they should be considered generally as a Bad Thing for the software business in general.


There is a general attitude in Washington, sponsored by the ??AA, that any law that creates more "intellectual property" is good for business. Microsoft is sending a message that it ain't necessarily so.

Except, of course, that itsatrap (1)

Mateo_LeFou (859634) | about 8 years ago | (#16093276)

I'm not seeing this as a saw-the-light moment w/r/t "intellectual property". I see it as a fairly simple maneuver to make sure that no one hesitates to implement XML the way Office 13 does.

Re:Good, positive attitude (0)

rackhamh (217889) | about 8 years ago | (#16093355)

It also goes to show that, if software patents are bad for Microsoft, they should be considered generally as a Bad Thing for the software business in general.

What a crock. That's like saying that because gasoline is bad to sell to pyromaniacs, nobody should ever be sold gasoline.

Here is a diagram to illustrate a view of the world that you might find enlightening:

black---gray---white

Your statement is also a logical fallacy. Here's a series of logic statements to illustrate the problem:

Monkeys have brown hair.
Bill Gates has brown hair.
Therefore, Bill Gates is a monkey.

Then again, maybe that wasn't the best example for this crowd.

Promise isn't worth much. (0)

Lead Butthead (321013) | about 8 years ago | (#16092962)

Promise unless is in the form of a written contract, isn't worth much. Things must be taken in the context of capability, not intention; for intention could change easily and quickly. Just because Macroshaft promises today that it will not sue, does not preclude the said action in the future, since its patents are enforceable but (non-specific) promise isn't.

Re:Promise isn't worth much. (0)

Anonymous Coward | about 8 years ago | (#16093625)

It's a shame you had to spoil a good post by the "Macroshaft" reference. Just for contrast I'll say "Red Shat" and "Lunix" and "Mac OS COCKS". The stupid balance is restored. A good point is better without the childish rhetoric.

Promise (0)

RAMMS+EIN (578166) | about 8 years ago | (#16092965)

Quoth Microsoft: We hereby solemnly pledge not to use these patents to scare our customers away.

Competitors (1)

RAMMS+EIN (578166) | about 8 years ago | (#16092982)

Of course, they said nothing about using the patents against their competitors or vendors or users of competitor's products. So what have we gained? They won't sue you, as long as you use or distribute _their_ products. Well, thank you very much. The chilling effect of software patents on the industry is still as strong as ever.

OH, sure, they'll act contrary to Capitalism (0)

Anonymous Coward | about 8 years ago | (#16092996)

And the wolf won't enter the chicken koop.

Look here:
http://malfy.org/ [malfy.org]

SO (1)

JustNiz (692889) | about 8 years ago | (#16093022)

if they're not intending to use them, why did the get them in the first place? Its like someone pointing a gun at your head but saying "I won't pull the triger, honest".

This is idiotic (1)

Asrynachs (1000570) | about 8 years ago | (#16093103)

The whole idea behind a patent is to give the patent holder an amount of time with which to make money off their invention. Microsoft patenting web elements then not enforcing the patent is just a bloody waste of time.

The only other reasoning I can see behind this is so they can say 'yeah we did this'

Re:This is idiotic (1)

sillybilly (668960) | about 8 years ago | (#16093528)

Or they can say we did this so somebody else can't do it then sue us for their patents - is one argument used a lot, we do "defensive patenting." I think the term "defensive patenting" is boloni, if that's all you want, to defend yourself all you need to do is publish to the world without applying for a patent, and then it's prior art public domain for anyone else, and nobody can have a patent on it and sue you. You just have to be the first to publish it to the world before someone beats you to it and publishes it as a patent. That's all.
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