Patent lunacy defense

Microsoft reportedly has filed two patents covering certain aspects of RSS, Really Simple Syndication. Dave Winer is outraged. Nick Bradbury sagely says "Not so fast".  I don't have the inside scoop on this yet, but here is what I think is happening. Microsoft is protecting itself against patent trolls.

Relax. I believe Microsoft has no intention of enforcing this patent against anyone, and no intention of collecting royalties on it. Microsoft is not pretending that they invented RSS...just protecting itself against potential patent infringement lawsuits from "shell companies" and "patent trolls" who do nothing but sue big companies. Sad to say this is the current state of the patent system.

You might recall that Microsoft was sued by a shell company called Eolas for a patent on the embedding and invoking of interactive applications, such as plug-ins and applets, in Web browsers, something every Internet application has done for years.  Google was sued for patent infringement on GoogleTalk. Blackberry was sued, for $612M by NTP. RedHat was sued over Hibernate. All of these patent infringement lawsuits cost millions of dollars to settle. And all of them were about commonly used technologies that were in the public domain for years...until some patent troll popped up and produced an obscure patent.

Big successful companies like Microsoft, Oracle, IBM, and Google are prime targets for patent trolls and their lawyers. These mostly frivolous lawsuits take years to settle and cost millions of dollars to defend, even if you win.

Patent portfolios are the best defense against patent infringement lawsuits. Many times there are overlapping patents or very similar patents on any technology. When a big company is sued the first thing they do is look at their own patent portfolio for a similar patent so they can counter sue. This usually leads to a reasonable out of court settlement. Patents become poker chips in a high stakes game of legal lunacy. Don't you just love lawyers?

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Comments

[Dave Winer]

I'm more tired that "outraged" -- aside from that, how exactly do you know that Microsoft intends to use the patent defensively? Does it say that on the patent? Have you consulted a patent lawyer? Talked with their lawyers? Their board? All future board members of Microsoft? Maybe they'll sell the technology to someone who isn't so benevolent? Have you considered all the possibilities Don? And just asking, have you disclosed all your conflicts?

[Don Dodge]

Dave, Why do you jump to negative conclusions and assumptions?

Microsoft has been sued many times by companies and patent trolls just trying to extort money. It happens to Google, IBM, Oracle and every other big software company. It is a sad state of affairs.

Microsoft has lots of patents covering just about every aspect of software. How many times in the past 30 years has Microsoft sued any company for patent infringement? I can't think of any. Microsoft, IBM, and all the big guys use their patents as a defense, much more than as an offensive revenue generator.

Dave, my blog masthead clearly says I work for Microsoft's Emerging Business Team. My bio states it as well. I make no secret of it, and make no apologies either. I have been in the software business for more than 20 years and worked for some of the most innovative companies in the world; DEC, Forte Software, AltaVista, Napster, Bowstreet, Groove Networks, and now Microsoft.

For the past 2 years I have worked for Microsoft and enjoy it immensely. There are a lot of new leaders at Microsoft like Ray Ozzie, JJ Allaire, and now Jon Udell. Microsoft is not the "Evil Empire" that some suggested in the past.

[Dave Winer]

Sorry, I didn't know you work for Microsoft. Didn't mean to make an accusation, that's why I said "just asking." I think you've gone a bit off the deep end here, reading far more into a question that was there. And I have no idea how many times Microsoft has used its patents, and I doubt you do either.

[Dave Winer]

BTW, it would be great if you didn't say I was outraged. I just noticed that in the blurb about your post on Techmeme. Great. Now everyone who reads that thinks there's some basis for that statement. Pretty nasty little trick you played on me there, Don. :-(

[Dave Winer]

One more thought.

Can I have an agreement, signed by an officer of Microsoft, saying they'll never sue me for using a feature of RSS or their RSS software in my software.

I have no patents to trade with them.

That's kind of an acid test, don't you think??

[Don Dodge]

Dave, Thanks for your comments. I am honored that you have taken the time to participate in the discussion.

The title of your blog post was "A tale of corporate atrocity" and your closing comment was "This should be denounced by everyone who has contributed anything to the success of RSS." Atrocity? Denounced? ...sounds like outrage to me. I don't play dirty tricks, and I'm sorry you took it that way. It was not intended.

On your request for an agreement not to sue, not to muddy the waters, but that is precisely the nature of the Microsoft agreement with Novell.

Microsoft is not generally interested in suing anyone, and makes reciprocal arrangements with lots of companies.

Dave, you have been in this business a long time, and have worked with Microsoft people over the years. Most recently with Microsoft CTO Ray Ozzie on SSE (Simple Sharing Extension) to RSS. Microsoft made this innovation available to the open source world under the Creative Commons license.Good stuff.

We can accomplish a lot more good working together, than by trading barbs on blogs. Please don't assume the worst. If we mess up, go ahead and bash us. Most times I think you will find Microsoft's intentions are honest.

Thanks for listening.

[Jason Wood]

Don,

Way to keep a level head on this one. Ironic that someone would imply you have a conflict of interest, I didn't see anyone holding a gun to your head to blog about this. If you were trying to tow the company line, it would've been far easier to not say a word about the RSS patents.

Have a great holiday,

J

[Tim]

I just did a quick once over of the patents, and I don't see them as attempting to patent RSS. It looks to me like they're an attempt to patent a particular consumer/provider of RSS/Atom feeds.

[Dave Winer]

Yeah, except like I said, I was tired, not outraged. In any case, let me say that you seem like a hypocrite, you think that by asking if you have a conflict that I am claiming you have one, but you're willing to say unequivocally that I was outraged, even after I informed you that that was inaccurate.

Are you even a little upset, do you feel like you haven't been treated fairly? Then you have an idea how I feel being characterized the way you have characterized me.

Now, you didn't answer the question about whether I can have the license or not. Please, since you work at Microsoft,send an email to Steve Ballmer, and ask him to give me the license. Seems to me you should support that, considering you want your company to only use these patents defensively, or have I read too much into your view?

[Don Dodge]

OK Dave, I accept that you were tired. No problem, happens to all of us.

My personal view is that patents around RSS, Eolas, and any other commonly used feature, should not be used to collect money or stifle innovation. They should only be used for defensive purposes. But that is just my opinion.

Steve Ballmer is a very reasonable guy, but he is not the right person to start with for this discussion. Jane Kim is an author of the patent and works on the IE team. I will forward your request to her.

[Casual Observer]

Can Dave Winer get any more insufferable? Throwing loaded words like hypocrite, "nasty trick"...then coming back with an acid test for Don's intentions. Ugh.

Dave, this is reality. Microsoft, as far as I can tell, has done nothing at this point to merit your outrage (yes, that is the tone of your original post). As Don suggested, if they do, then howl away. Until then, enough with the vitriol.

[Ric]

This whole discussion highlights some of the worst aspects of software patents - it allows patent trolls, and it also allows large companies like Microsoft to continue to threaten Linux and other opensource software with litigation as a competitive measure. Like it or not, Don, Microsoft is as much sinner as sinned against.
While Dave Winer has been known to hold passionate (and occasionally belligerent) opinions, in the area of RSS he has more right than most of us to be a little sensitive.

[Juha]

While I can appreciate that Microsoft has to protect itself against rapacious patent litigators, the stated defensive aim seems at odds with the recent lawsuit against Alcatel Lucent.

Here's the URL for reference - the blog doesn't seem to accept HTML tags:

http://www.electronicsweekly.com/Articles/2006/12/15/40377/Microsoft+sues+Alcatel-Lucent+on+future+messaging.htm

[Don Dodge]

A quick search reveals that in November, Alcatel filed lawsuits against Microsoft for several alleged patent infringements related to IPTV. The IPTV patents stem from the work of Oracle engineers who had developed fast-forward and rewind features for its video server technology. The patents were sold to a company Alcatel later acquired.

So, in defense, Microsoft sued Alcatel for infringing on 10 of its patents in the same area.

See, this is a current example of how patent defenses work. Patents are often overlapping. That is fine, and most of the time companies find ways to do business without lawsuits.

Juha, thanks for bringing up this case. But, as a journalist, I thought you might have done a 30 second search to discover that Alcatel sued Microsoft first. This was defensive.

[Juha]

Thanks Don - I am a journalist, but have to admit it didn't occur to me that Microsoft would "retaliate" or counter-sue in defence. Interesting, and yes, patent lunacy indeed...

[Robert H]

Sorry, Dave, but when you "ask" questions like that, you are indeed implying an answer. It's pretty clear to the passerby that you initiated the hostilities. Next time, consider not posting when you're so tired you can't be civil.

By the way, I have no clue who any of you are. I just followed a link from a CNN story.

[Dave Winer]

I meant I was tired of all the legal maneuvering that big tech companies do. You guys want to blame me for Microsoft's patent, go for it, but it's not correct, I didn't put up any barriers to what people could do with stuff I did first.

[Dave Winer]

Also, it's nice that Ray's spec was licensed under the Creative Commons, but that doesn't say anything about whether they filed a patent on it or not. FYI.

[Mat B]

Dave,
From what I've read, he made no blows at you by simply stating you were "outraged". I wouldn't find it offensive if anyone considered me to be outraged at when speaking of an issue such as this. But, instead of agreeing that you were upset about the situation, you said that you weren't.. then you backed it up with a few posts of flaming banter to further proove that you were outraged. On top of this, you called him a hypocrite and made a few other low blows while he was simply stating the obvious.
In no way would anyone ever think someone was a bad person for being "outraged" at something of this nature. No matter what issue may arise in the corporate world, someone is going to get stomped on. I find it very disrespectful, irresponsible and childish to even try to point fingers at someone who was simply defending the company they work for, for obvious reasons (even if you ARE tired. You weren't tired the other 5 posts.) He, in no way, harmed your integrity.

[Chuck]

I guess I will just have to chime in and say this: When Microsoft wants to really change their image - they need to first realize that the work of others is not patentable - no matter how they spin that. RSS is not Microsoft technology. Dave Winer is extremely qualified to talk to this subject, so I will let him do so - I dare say far more so than anyone else posting negative comments to Dave.

The real issue is this: TRUST. It has to be earned first - it isn't freely given. With every hostile defense of Microsoft in a very petty manner, that trust is lost. I am old enough to remember every action that the company has taken from the DOS days to the present. There is a lot of distrust and anger that the company sowed in the computing world that has yet to be overcome. That was Microsoft's own handiwork.

There is only one party that can do what is necessary to overcome that distrust: Microsoft. The actions, words and pronouncements by the company weigh heavily on that trust. If Microsoft chooses to have conversations versus issuing edicts and broad-based bashing of people who choose other ideas - then trust *might* be earned.

Every action taking time to bash people for their difference weighs heavily in the column of "don't trust us". That just makes it harder to build a bridge between people. At some point - people either choose to work together or not.

It will be up to Microsoft to change the perception of distrust. It is your choice - do you really want cooperation or do you choose to continue to bash anyone who does not share your opinions?

My questions to Don are these:

1) Why did Microsoft not first talk to those who have actively developed and built RSS for many years prior to these patent applications?
2) What specifically did the company expect would happen without taking the action to build cooperation first?
3) Who within the company fails to realize that an announcement of this nature without such discourse prior to the fact would cause more distrust?
4) How does Microsoft hope to foster "trust" in the world when it fails to think about cooperation first?

Simple, straightforward questions. My honest disclosure: I don't trust Microsoft, but only because I remember every arrogant spokesman and employee there that I have ever met. I have yet to meet one person there that has impressed upon me anything other than their utter contempt for anything not Microsoft. Even when I was a Microsoft partner (in the early nineties - with a multi-million dollar state contract) - the partnership was always one of utter arrogance from Microsoft. Every dealing since then has never resulted in any positive experience either.

Here's a chance to change that.

Chuck

[Don Dodge]

Chuck, Thanks for your comments and questions. First, let me remind you that Microsoft is NOT claiming to have invented RSS. Second, no one from Microsoft is bashing Dave Winer, despite his inflamatory comments. Third, the patents Microsoft filed are focused on functionality within Internet Explorer and Vista, and how they work with RSS, not RSS itself. Fourth, the patents are, in my opinion, defensive against patent trolls and litigous lawyers.

I agree that trust must be earned. I also agree that reputations, good or bad, are earned over time. Microsoft, in some areas, has a bad reputation that will take a while to live down through good works and communication.

Now to your questions. Why didn't Microsoft talk to people involved in RSS, and what reaction did they expect if they didn't?

Well, my guess is that the lawyers controlled the timing of the patent, the lack of cummunication, and even the delayed response. I agree it wasn't handled well from a PR / trust perspective. But, the real proof is in what happens going forward. My guess is that Microsoft will never enforce this patent, never collect royalties from it, and will never stop anyone else from innovating in this area. If Microsoft does any of these things feel free to bash them...and I will join you in the bashing.

How does Microsoft hope to foster trust without cooperation? I agree more communication and cooperation is in order. The challenge is in how to do it. The Open Source world has many voices and characters...and no one in charge. They have lots of differing opinions even amongst themselves. Some of them will never have an open mind, and will always criticize anything Microsoft does, despite that facts or circumstances.

I hope that blogs like mine and the thousands of Microsoft employees will help foster communication and provide a view into the thoughts and actions of Microsoft. Even if you don't agree with the decisions, at least there will be some understanding of the reasons and thought process.

Microsoft, like the open source world, is made up of thousands of individuals...mostly good guys. Bash us when we truly do something wrong, but try to keep an open mind beforehand.

Thanks,

Don

[Chuck Talk]

Thanks Don.

Your answering my questions openly and honestly is refreshing. It is a change from every other interaction I have had with any other Microsoft employee - ever. That IS a start.

Not only that, but I do plan to follow up on that communication. I am not so opposed to dialogue - I just want to know that parties are actually listening. As much as Microsoft has a lot to live down, so do we in our rhetoric. That is based on our historic interactions. I am more of a Reaganist here: trust but verify. The only way to do that is to build a bridge of communication and you have shown me you are willing. That is a start.

Thanks.

Chuck

[Chuck Talk]

BTW: one last very minor point - for those of us with older eyes - the anti-spam captcha-type verification is really hard to read...

Chuck

[Chuck Talk]

Since I have no direct way to reach you- just thought I would share that I have shared my thoughts on your comments here. I am hopeful there are more like you in Microsoft than the old guard I have dealt with in the past. Microsoft needs more people like you Don.

Chuck

http://orangecrate.com/modules.php?name=News&file=article&sid=539

[James Governor]

i am outraged. outraged... just kidding. my question - if I asked JJ Allaire, Ray Ozzie and Jon Udell (soul of a new microsoft) what they think of tech patents generally, and Microsoft policies on same specifically, i bet it would be an interesting conversation. maybe i should ask them. i still havent seen real leadership from Microsoft in fixing the disaster that is current patent approaches. until i do i have to be skeptical.