Then and Now

by on March 8, 2007 · 24 comments

Brad Smith, Microsoft general counsel, 2007: “Protection for software patents and other intellectual property is essential to maintaining the incentives that encourage and underwrite technological breakthroughs. In every industry, patents provide the legal foundation for innovation. The ensuing legal disputes may be messy, but protection is no less necessary, even so.”

Bill Gates, Microsoft CEO, 1991: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today…A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose.”

It sure would be unfortunate if the giants were able to use software patents to squelch start-ups.

  • http://enigmafoundry.wordpress.com eee_eff

    TLF 08.3.07 bg speech 1991 malreported doubleplusungood refs nonquotes rewrite fullwise upsub antefiling

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    TLF 08.3.07 bg speech 1991 malreported doubleplusungood refs nonquotes rewrite fullwise upsub antefiling

  • http://weblog.ipcentral.info/ Noel Le

    Hey, years ago Professor Lessig was arguing how FOSS is more innovative than proprietary technologies. That hopeless argument has been dropped for the claim that FOSS gives some vague notion of freedom, that is unless you consider every half finished project on SourceForce an innovation.

    I love it when Tim sees me write-up an article or speech on IPcentral, then hops over to TLF to write on the same thing. Its pretty evidently those are hurried posts…

  • http://weblog.ipcentral.info/ Noel Le

    Hey, years ago Professor Lessig was arguing how FOSS is more innovative than proprietary technologies. That hopeless argument has been dropped for the claim that FOSS gives some vague notion of freedom, that is unless you consider every half finished project on SourceForce an innovation.

    I love it when Tim sees me write-up an article or speech on IPcentral, then hops over to TLF to write on the same thing. Its pretty evidently those are hurried posts…

  • http://enigmafoundry.wordpress.com eee_eff

    Hey, years ago Professor Lessig was arguing how FOSS is more innovative than proprietary technologies.

    He’s not ‘arguing’ that any more because it’s become the consensus opinion.

    “That hopeless argument has been dropped for the claim that FOSS gives some vague notion of freedom, that is unless you consider every half finished project on SourceForce an innovation.”

    Hmm how about LAMP? How about XFS fille system? How about KDE, blackbox, GRASS, blender, xplanet, celestia, Openoffice……?

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Hey, years ago Professor Lessig was arguing how FOSS is more innovative than proprietary technologies.

    He’s not ‘arguing’ that any more because it’s become the consensus opinion.

    “That hopeless argument has been dropped for the claim that FOSS gives some vague notion of freedom, that is unless you consider every half finished project on SourceForce an innovation.”

    Hmm how about LAMP? How about XFS fille system? How about KDE, blackbox, GRASS, blender, xplanet, celestia, Openoffice……?

  • http://weblog.ipcentral.info/ Noel Le

    I’d say those projects are at a mature stage Enigma. I did not say that there are zero FOSS innovations.

    No, there is no consensus that FOSS is more innovative. There is a consensus that its at least viable in some form, and in my opinion, that form is with heavy corporate subsidy. FOSS will remain limited by its more extreme licensing models though.

  • http://weblog.ipcentral.info/ Noel Le

    I’d say those projects are at a mature stage Enigma. I did not say that there are zero FOSS innovations.

    No, there is no consensus that FOSS is more innovative. There is a consensus that its at least viable in some form, and in my opinion, that form is with heavy corporate subsidy. FOSS will remain limited by its more extreme licensing models though.

  • Doug Lay

    Microsoft was a disruptive innovator then; they’re a threatened incumbent now. Gates (correctly IMHO) IDed software patents as a threat to disruptive innovators. Smith (correctly IMHO) has IDed software patents as an insurance policy for threatened incumbents, though his language isn’t as forthright as Gates’.

  • Doug Lay

    Microsoft was a disruptive innovator then; they’re a threatened incumbent now. Gates (correctly IMHO) IDed software patents as a threat to disruptive innovators. Smith (correctly IMHO) has IDed software patents as an insurance policy for threatened incumbents, though his language isn’t as forthright as Gates’.

  • http://weblog.ipcentral.info/ Noel Le

    Heck, Microsoft did not think the Internet was a big deal for a while.

    I don’t see how a 16 year old statement is any more pertinent to Microsoft’s patent policy views than a misunderstanding of the digital economy they held as recently as 8 years ago.

    Besides Billg, there is another prominent fellow who once opposed software patents, but is now one of their biggest supporters: Robert Merges.

  • http://weblog.ipcentral.info/ Noel Le

    Heck, Microsoft did not think the Internet was a big deal for a while.

    I don’t see how a 16 year old statement is any more pertinent to Microsoft’s patent policy views than a misunderstanding of the digital economy they held as recently as 8 years ago.

    Besides Billg, there is another prominent fellow who once opposed software patents, but is now one of their biggest supporters: Robert Merges.

  • Doug Lay

    The two statements are pertinent to understanding who benefits from software patents (incumbents) and who loses (upstarts).

  • Doug Lay

    The two statements are pertinent to understanding who benefits from software patents (incumbents) and who loses (upstarts).

  • http://www.codemonkeyramblings.com MikeT

    Noel, it’s quite simple, really. 16 years ago they realized that if the rules of today, applied then, Microsoft would have been crushed. Will the next Microsoft be able to come along without being harassed into bankrupcy by the one that exists today? I don’t think so. Stealing ideas from one another and building on them is what forced the advances to be so rapid. Your good ideas were only good for one or two product cycles. That software is also insanely cheap to produce compared to other engineering products is a point that pro-patent people miss. A friend of my fiance’s employer may have me help out with a beta test. Show me another industry where a serious product can be sent to a tester at about the cost of a few dollars to mail out a perfect carbon copy of the product that is going through testing. That advantage right there negates most of the argument for software patents.

  • http://www.codemonkeyramblings.com MikeT

    Noel, it’s quite simple, really. 16 years ago they realized that if the rules of today, applied then, Microsoft would have been crushed. Will the next Microsoft be able to come along without being harassed into bankrupcy by the one that exists today? I don’t think so. Stealing ideas from one another and building on them is what forced the advances to be so rapid. Your good ideas were only good for one or two product cycles. That software is also insanely cheap to produce compared to other engineering products is a point that pro-patent people miss. A friend of my fiance’s employer may have me help out with a beta test. Show me another industry where a serious product can be sent to a tester at about the cost of a few dollars to mail out a perfect carbon copy of the product that is going through testing. That advantage right there negates most of the argument for software patents.

  • http://blog.actonline.org MorganR

    Doug, do you have any facts whatsoever to back up the suggestion that patents somehow only benefit the big incumbents? What’s the name of a small company that Microsoft has sent a patent infringement letter to? How about Amazon and the infamous one-click? RIM vs. NTP?

    I recommend you read the Mossingoff study on first to file and advantages for SMEs. Then take a look at the study from National Academy of Science, and take a look at the USPTO 21st Century report – hell, look at the news for the past 4 years! What you will see is that the people getting sued the most are the big companies. Who is suing them? Smaller companies! Eolas (UC Berkley) sued Microsoft – they didn’t sue ‘bob’s software shack’ down the street.

    When you actually go out and meet small businesses, even in the software field, they look at IP, and possibly patents, as a way to gain leverage on the big guy.

    The problem doesn’t lie with the misguided notion of big vs. small, it lies with the fact that right now, software patents tend to be of such questionable quality that no matter who filed them the value is suspect. This, combined with some problems with the way the patent system deals with “willfulness”, has led to ‘patent spam’ whereby an infringement letter is brought on some crap patent where the license cost is less than the cost of fighting it. It has NOTHING to do with patents as a concept.

    Poor quality gets the lawyers involved and that advantages the deep pockets. The patent itself is actually the ONE thing that equalizes players.

    We at ACT just reached out to more than 750 of our small company members to ask them about the problems with big company licensing. NONE of them felt that patents were a disadvantage – sure they all had problems with the big companies, but this quote sums up the responses on Patents:

    “We will succeed yet because we have a well-written patent and good technology.”

    So before you go talking out of school about big vs. small, get your facts straight: IP helps the little guy get rewarded for a great idea. Poor quality software patents that should never have been granted destroy opportunity for everyone.

  • http://blog.actonline.org MorganR

    Doug, do you have any facts whatsoever to back up the suggestion that patents somehow only benefit the big incumbents? What’s the name of a small company that Microsoft has sent a patent infringement letter to? How about Amazon and the infamous one-click? RIM vs. NTP?

    I recommend you read the Mossingoff study on first to file and advantages for SMEs. Then take a look at the study from National Academy of Science, and take a look at the USPTO 21st Century report – hell, look at the news for the past 4 years! What you will see is that the people getting sued the most are the big companies. Who is suing them? Smaller companies! Eolas (UC Berkley) sued Microsoft – they didn’t sue ‘bob’s software shack’ down the street.

    When you actually go out and meet small businesses, even in the software field, they look at IP, and possibly patents, as a way to gain leverage on the big guy.

    The problem doesn’t lie with the misguided notion of big vs. small, it lies with the fact that right now, software patents tend to be of such questionable quality that no matter who filed them the value is suspect. This, combined with some problems with the way the patent system deals with “willfulness”, has led to ‘patent spam’ whereby an infringement letter is brought on some crap patent where the license cost is less than the cost of fighting it. It has NOTHING to do with patents as a concept.

    Poor quality gets the lawyers involved and that advantages the deep pockets. The patent itself is actually the ONE thing that equalizes players.

    We at ACT just reached out to more than 750 of our small company members to ask them about the problems with big company licensing. NONE of them felt that patents were a disadvantage – sure they all had problems with the big companies, but this quote sums up the responses on Patents:

    “We will succeed yet because we have a well-written patent and good technology.”

    So before you go talking out of school about big vs. small, get your facts straight: IP helps the little guy get rewarded for a great idea. Poor quality software patents that should never have been granted destroy opportunity for everyone.

  • Livealong

    Well said MorgarR, IP is the new center of the universe.

    Creations starts there, you, me for that matter, IP is the center of the Big Bang, i guess.

  • Livealong

    Well said MorgarR, IP is the new center of the universe.

    Creations starts there, you, me for that matter, IP is the center of the Big Bang, i guess.

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