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Doug's Mailbag: Microsoft's View on Patents

Here's some reader mail on Redmond's conflicting views on patent laws:

It would appear that Microsoft wants only to have the patent office improve its bottom line. If you ask a lawyer he will tell you, in a rare fit of honesty, that that the more obfuscated the law, the easier it is to turn it to your nefarious advantage. Microsoft spends more money on lawyers then it does on research. This tells you something all by itself. Because of its size, Microsoft is slow and vague. This means that, deliberately or not, it has to steal ideas because it takes a while to get to the top in such a cumbersome organization.  The same size that lets you monopolize one market inhibits your ability to move quickly elsewhere.

To be fair to Microsoft, this is just Organizational Theory 101. It's human nature  to externalize as much of your costs as possible. Imagination is expensive. We also need to be aware that one of the reasons for patents in the first place was to enable the best and brightest to take advantage of their speed and agility. Essentially, the Microsoft position is, 'Go ahead and get your patent -- if we can make it look like we tried it once or twice, we get to ignore the patent.' Of course, this presupposes that everyone is playing by the same game, which history has shown Redmond does not.

This appears to be just another rouse by the MS legal department to justify its exorbitant salaries and costs while producing nothing but sunk costs for the company.

We need a new legal object, a 'software work.' Software does not fit in the shoes of a legal object designed for machinery, tools, gadgets and appliances. It also does not fit the shoes of a legal object designed for recordings, music, art, manuscripts and books. As computer hardware becomes more robust, software is going to become even more difficult to fit into either the category of a patent or a copyright.

Patent law is already flawed within its own domain. Entities file patents without any intention of bringing anything to market. Instead they sit on them until someone infringes, and then sue them. That is all they do. Patent law needs to change to put the 'patent trolls' where they belong: patentless.

We need tort law reform for more reasons than the health care issue. Frivolous lawsuits use our court system as a legal weapon to out-money the real inventor until they capitulate. As things now stand, the bad guys go free while the insurers, customers and shareholders pick up the tab. We also need reform of the statute of frauds so lawyers are compensated for what they do, not relative to the size of the award.

A fundamental invention (such as a laser, computer or television) is a solution seeking a problem. It takes a long time to discover and develop usable applications that can make some money for its inventor before patent protection expires.  A new prescription drug or medical device has to jump through all kinds of government scrutiny before it can be marketed to the public. Yet the countdown begins when the patent is filed, not when the drug achieves FDA approval about 10 years later. Thanks to the Waxman-Hatch Act, anyone can use the patented process to manufacture the drug as a generic the moment the drug patent expires. This gives the prescription drug manufacturers only five to seven years to recoup their entire investment, help pay for the duds and make a decent return on their investment. That may explain the reasons behind the drug ads on TV and relentless marketing to medical practitioners.

Copyright law also has need of reform because the Internet has made 'fair use' a joke, and computer technology has made enforcement difficult. Computers can use adaptive software applications to 'invent' songs. Who is the author? The computer. Who owns the copyright according to current law and international treaties? The author...for life plus 50 years. What is the expected life of a computer? See what I mean?

Patents also have similar problems. Computers can use adaptive technology similar to the way a human brain works to derive optimum structural designs. Through artificial intelligence, computers can program themselves to do things like drive vehicles, prospect for oil, forecast weather, discern probable pathways for hurricanes and discover sub-atomic particles. Ok, so who designed the software? The computer. Who is the author of the software? The computer. Then who owns the patent according to current law? The computer. Can a computer assign a patent to a human being or corporation? No. It is not human and is mentally incompetent because it has an IQ of zero. That is why we call this phenomenon 'artificial intelligence.' It isn't real. It's just Darwinian.

So why hasn't the legal profession addressed this issue? No one knows how to define a software work that covers all of the possibilities. Also there is too much money to be made in litigating the status quo, aided and abetted by creative legal mischief. No one has clean hands, including Microsoft. Isn't it odd that Microsoft now wants patent reform? Is it interested in legal reform for the common good, or has it run out of legal ammunition?

I think your songwriter was Judy Collins, at least one of the songs you used was Clouds.

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Posted by Doug Barney on 02/07/2011 at 1:18 PM


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