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   Re: [xml-dev] Another Microsoft XML patent

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On 6/5/05, M. David Peterson <m.david.x2x2x@gmail.com> wrote:

> I doubt any official or non official comment could (or should) be made
> by an MS blue badge 

Ignoring Mr. Peterson's sound advice ..... :-) I'm not going to touch
the legal issues or the specific patent discussion here other than to
say that people really need to do some searching on the general
subject of patents and the software industry before getting all worked
up about individual patents of the sort that pretty much all the big
companies get on a regular basis.  I think you'll find a lot more "dog
bites gorilla" stories than "gorilla stomps on poor widdul puppy"
scenarios that  some of the posts in this thread speculate about.

 From what I recall, and from what I came up with in some quick
Googling, there are far, far more lawsuits by little companies (often
those whose only asset is some IP they have purchased) against the big
companies than actual examples of big companies using dodgy patents to
crush the competition.

 The reality today is that the major companies are generally *targets*
of IP lawsuits. [I claim no expertise here ... counter examples are
welcome]  For example,  see
http://www.eweek.com/article2/0,1759,1661094,00.asp "We think part of
that is the phenomenon that many companies that did not survive the
burst of the dot-com bubble were left with nothing but a portfolio of
patents from which to make money."  One example about which I know a
little: The company that developed the terminal applet that ships with
Windows and whose tidy niche in selling terminal emulation software
for the BBS systems of the 80's and '90s was destroyed by the
internet, got more than $60 million from Symantec after years of
litigation over a very broad patent on virus filtering during file
transfer  http://www.techworld.com/news/index.cfm?fuseaction=displaynews&NewsID=376.
Note that they never accused Symantec of stealing their (primitive and
no-longer-effective) technique; their patent covered essentially the
very concept of virus filtering during file transfer.  The real
villian is the USPTO for ever issuing such a broad patent on a fairly
obvious idea that many people came up with more or less
simultaneously.  (The others never dreamed that the idea was
patentable, I guess).

 It's quite true that IBM gets a very big chunk of money from
licensing its IP portfolio (1-2 billion $ per year?) and the other big
companies wish they could as well.  All major software companies AFAIK
 encourage their employees to submit patent applications when they
come up with what appears to be a novel, non-obvious, and useful
technique.  Whether these are actually patentable is the USPTO's
business to determine.  If the patent in question is indeed bogus,
look to the USPTO's incompetence, not some evil plotting, for the
source of the problem.

Even patents that aren't plausible money-makers on the IP licensing
market can be very valuable to companies as *defenses* against
nuisance lawsuits.  Look at IBM's counterclaims against  "The SCO
Group" -- lots of patent infringement claims that IBM could not
plausibly initiate against a competitor, but are fair game to use
against lawsuit scammers.   The best defense in these cases is a good
offense.  "You are suing us for infringing your patent on hashtables,
eh?  Well, you're infringing our patents on half of Computer Science
101 and here's a 1000-page countersuit."  Deep sigh.


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