March 11, 2005 10:16 AM PST

Microsoft: Patent overhaul needed now

Related Stories

Bill Gates and other communists

February 15, 2005

Open-source honchos trash software patents

February 1, 2005
The U.S. patent system needs to be reformed, says Microsoft, which spends millions of dollars a year fighting intellectual property lawsuits.

Brad Smith, general counsel for the software maker, on Thursday called for reform in four areas: improving patent quality, reducing excessive litigation, improving the coordination of international patent law, and increasing the accessibility of patent laws for small companies and individuals. Smith was addressing an audience at the American Enterprise Institute for Public Policy Research in Washington.

"We have benefited substantially as an industry and a country from patent protection," Smith said. "But the combination of technological change and a globalizing economy are creating new challenges for the U.S. patent system."

Related story
In Europe, patent olive branch--or threat?
European lawmakers thrash out software patents.

Microsoft, typically faced with an average of 35 to 40 patent lawsuits at any given time, is particularly interested in reform as it hopes to pare down the $100 million it spends annually to defend itself against such suits. The software giant's interest in patent reform also comes at a time when the European Commission is exploring the introduction of U.S.-style software patents.

The U.S. Patent and Trademark Office has seen annual applications triple to more than 350,000 since the 1980s, Smith said. Microsoft has submitted more than 3,000 patent applications this year alone, he noted.

But funds to support the agency have not kept pace until recently, when patent user fees were increased, Smith said. Nonetheless, he called on Congress to stop the practice of channeling a large portion of the money raised from patent fees to other government uses.

"Microsoft strongly supports Congress's move toward eliminating this practice, but urges that steps be taken to put a permanent end to all fee diversion from the PTO," Smith said.

Microsoft's top legal executive also addressed the need for a special court to hear all patent cases at the federal district level, as an effort to bring consistency and predictability to patent litigation.

He also expressed a need for patent plaintiffs to demonstrate that they or their company would face irreparable harm that could not be compensated by monetary damages before a court issues a patent injunction on a defendant.

Coordination of international patent offices and their legal standards would be a good move, especially as Europe "wrestles with harmonization across the EU," Smith said. On Monday, the Council of the European Union, also known as the Council of Ministers, formally endorsed a controversial directive, which would legalize software patents. Several of member states of the European Union oppose the legislation.

Smith advocated the setting up of patent offices in Europe, Japan and the United States to develop common recognition of patent reviews. One area the United States would need to change is the standard it applies in awarding patents, Smith said.

"The U.S. is the only country in the world that applies a 'first to invent' standard for awarding patents. Every other country applies a 'first to file' standard," he said.

Finally, Smith called on the United States to eliminate patent filing fees for individuals and small businesses, saying the move could encourage more of these inventors to obtain patents.

10 comments

Join the conversation!
Add your comment
Watch one thing carefully!
There's pressure being built to swap from the "First to invent" to the "First to File" model which could have a very serious negative impact.

With the "First to File" model you could have a person develop some software which is patentable but who fails to do so or deliberately chooses not to patent it. Some other company could quickly make their own code, file for a patent and then sue the true inventor for damages.

The proposed new model would appear to invalidate the "Prior art" model.
Posted by aabcdefghij987654321 (1721 comments )
Reply Link Flag
What is needed is an "open prior art registry"
> ... a person develop some software which is
> patentable but who fails to do so or
> deliberately chooses not to ...

In a world (or country) were every line of a program is potentially patentable, it is impossible to patent everything. Certainly by those who cannot afford to hire a professional to do the filing. M$'s suggetion to remove the filing fees for individuals and small businesses is ignoring the fact that the real costs of filing a patent are not in the fees. What they ask for is an environment were smaller players can patent a bit more, but bigger player can grab the rest of the smaller players' work and confiscate it ("file first" someone else's work).

"Prior art" is a good concept, but it too is expensive to use when needed. How do you know/prove that prior art exists for something? especially when that something is written in a language only understood by "patent lawyers"? For a small company it is often impossible to defend against a larger one even if prior art exists, since finding it, or proving that it's relevant might be to expensive and too high a risk, so settling for peanuts is a better option.

What is needed for small players who might not want to go theough the process of obtaing a patent, but don't want someone else to obtain a patent on their work, is a different kind of registry, that just records the prior art in an accessible way, without providing the monopoly rights that a patent provides. The purpose of a patent is to create a (temporary) monopoly: no one else is allowed to "think the same thought" for a while (until the patent term expires). "Just prior art" does not disallow anyone else to "think the same thought". It just disallows anyone else to obtain a monopoly on the idea by filing a patent. However, when there is a patent and there is prior art, the burden (and costs) of proof lie on the prior art's side, and that side is often the side short of cash.

Some open and free registry that would collect facts and references relating to ideas, either patented or not, in a way that would make it easier to find the information about prior art and to find the relevant references to actual evidence (real documents, names of people involved that might be able to testify etc.) would make it easier for the small players or those who chose not to profit from their ideas to defend their rights. It would certainly be easier than filing patents on every written line of code, and it can also serve to collect info on older prior art that is not patentable now. Something similar to a wikipedia might work for this. Of course a lot of thought has to into deciding how to implement such a project, but the idea is that anyone who has info would be able to contribute it, and anyone who has to defend by showing a patent shouldn't have been granted because of prior art would have much easier life and much lower cost in finding the info proving the prior art claim.

Such a registry can be operated by a "not for profit" organization who would live on donations, or on reasonable fees for providing authirised copies of the information to be used in courts (i.e., info would be freely searchable on the web, and only when the info would be needed in court a formal certified copy would cost some money).
Posted by hadaso (468 comments )
Link Flag
Watch one thing carefully!
There's pressure being built to swap from the "First to invent" to the "First to File" model which could have a very serious negative impact.

With the "First to File" model you could have a person develop some software which is patentable but who fails to do so or deliberately chooses not to patent it. Some other company could quickly make their own code, file for a patent and then sue the true inventor for damages.

The proposed new model would appear to invalidate the "Prior art" model.
Posted by aabcdefghij987654321 (1721 comments )
Reply Link Flag
What is needed is an "open prior art registry"
> ... a person develop some software which is
> patentable but who fails to do so or
> deliberately chooses not to ...

In a world (or country) were every line of a program is potentially patentable, it is impossible to patent everything. Certainly by those who cannot afford to hire a professional to do the filing. M$'s suggetion to remove the filing fees for individuals and small businesses is ignoring the fact that the real costs of filing a patent are not in the fees. What they ask for is an environment were smaller players can patent a bit more, but bigger player can grab the rest of the smaller players' work and confiscate it ("file first" someone else's work).

"Prior art" is a good concept, but it too is expensive to use when needed. How do you know/prove that prior art exists for something? especially when that something is written in a language only understood by "patent lawyers"? For a small company it is often impossible to defend against a larger one even if prior art exists, since finding it, or proving that it's relevant might be to expensive and too high a risk, so settling for peanuts is a better option.

What is needed for small players who might not want to go theough the process of obtaing a patent, but don't want someone else to obtain a patent on their work, is a different kind of registry, that just records the prior art in an accessible way, without providing the monopoly rights that a patent provides. The purpose of a patent is to create a (temporary) monopoly: no one else is allowed to "think the same thought" for a while (until the patent term expires). "Just prior art" does not disallow anyone else to "think the same thought". It just disallows anyone else to obtain a monopoly on the idea by filing a patent. However, when there is a patent and there is prior art, the burden (and costs) of proof lie on the prior art's side, and that side is often the side short of cash.

Some open and free registry that would collect facts and references relating to ideas, either patented or not, in a way that would make it easier to find the information about prior art and to find the relevant references to actual evidence (real documents, names of people involved that might be able to testify etc.) would make it easier for the small players or those who chose not to profit from their ideas to defend their rights. It would certainly be easier than filing patents on every written line of code, and it can also serve to collect info on older prior art that is not patentable now. Something similar to a wikipedia might work for this. Of course a lot of thought has to into deciding how to implement such a project, but the idea is that anyone who has info would be able to contribute it, and anyone who has to defend by showing a patent shouldn't have been granted because of prior art would have much easier life and much lower cost in finding the info proving the prior art claim.

Such a registry can be operated by a "not for profit" organization who would live on donations, or on reasonable fees for providing authirised copies of the information to be used in courts (i.e., info would be freely searchable on the web, and only when the info would be needed in court a formal certified copy would cost some money).
Posted by hadaso (468 comments )
Link Flag
Prior Art MUST Remain
Without the Prior Art feature people will literally be able to reinvent the wheel.

No one should be able to profit from forgery and forging a patent from someone else's work is just as wrong as writing a check on his bank account.

Whether software code is patentable is another question. It fulfills the requirements of copyright law and is more applicable there in my opinion. (In the computer world, hardware is patentable, software is copyrightable and a ROM is both, for hardware design and software burned into it)

But in anycase PRIOR ART must remain!



:0) :^) :@)
Posted by qazwiz (208 comments )
Reply Link Flag
Prior Art MUST Remain
Without the Prior Art feature people will literally be able to reinvent the wheel.

No one should be able to profit from forgery and forging a patent from someone else's work is just as wrong as writing a check on his bank account.

Whether software code is patentable is another question. It fulfills the requirements of copyright law and is more applicable there in my opinion. (In the computer world, hardware is patentable, software is copyrightable and a ROM is both, for hardware design and software burned into it)

But in anycase PRIOR ART must remain!



:0) :^) :@)
Posted by qazwiz (208 comments )
Reply Link Flag
Submarine patents are evil
I think any patent holder who has not demonstrated any work or effort to materialize or create an invention within a year should lose their patent. Some people just create an idea and do nothing with it, in hopes that some other 'rich' sap (or soon to be) will have the same idea and do bring it to fruition, so that the person who patented it first will benefit from it. If we were to really apply the current system, most science fiction writers should hold the majority of patents. If a patent doesn't result in an idea that is brought to reality in some tangible form during a reasonable amount of time, it should be invalidated.
Posted by (3 comments )
Reply Link Flag
Submarine patents are evil
I think any patent holder who has not demonstrated any work or effort to materialize or create an invention within a year should lose their patent. Some people just create an idea and do nothing with it, in hopes that some other 'rich' sap (or soon to be) will have the same idea and do bring it to fruition, so that the person who patented it first will benefit from it. If we were to really apply the current system, most science fiction writers should hold the majority of patents. If a patent doesn't result in an idea that is brought to reality in some tangible form during a reasonable amount of time, it should be invalidated.
Posted by (3 comments )
Reply Link Flag
More self-serving blather
Just what we need, make the already broken patent system, more broken so it works in microsofts favor.

Does anyone at Microsoft have any shame? Or ethics? Or morals? I have yet to see one shred of proof that anyone there(at least in a decision making capacity) has any shred of decency whatsoever.
Posted by Bill Dautrive (1179 comments )
Reply Link Flag
More self-serving blather
Just what we need, make the already broken patent system, more broken so it works in microsofts favor.

Does anyone at Microsoft have any shame? Or ethics? Or morals? I have yet to see one shred of proof that anyone there(at least in a decision making capacity) has any shred of decency whatsoever.
Posted by Bill Dautrive (1179 comments )
Reply Link Flag
 

Join the conversation

Add your comment

The posting of advertisements, profanity, or personal attacks is prohibited. Click here to review our Terms of Use.

What's Hot

Discussions

Shared

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.