Bonum Certa Men Certa

A Turning Point for Software Patents? (Video)



Ogg Theora



Direct link



If Larry Lessig's experiences are anything to go by, expecting change in the USPTO is just as unlikely as stopping massive lobbying.

On the issue of Microsoft and software patents, see this post from last night.




   Message-ID: <df912e69-c174-4e09-88a2-e560a50a0320@m44g2000hsc.googlegroups.com>    From: Rex Ballard <rex.ballard@gmail.com>    Newsgroups: comp.os.linux.advocacy    Subject: Re: On Microsoft's Business Model After Loss of $90,000,000,000 in Value    Date: Sun, 27 Jul 2008 14:13:28 -0700 (PDT)



On Jul 27, 11:26 pm, Roy Schestowitz <newsgro...@schestowitz.com> wrote: > A prayer for Microsoft > ,----[ Quote ] > | Microsoft did not invent proprietary software. It may well benefit from > | proprietary lock-in, but is not the cause of it, and it's unreasonable to > | expect Microsoft to unilaterally disarm to the detriment of its shareholders.

The irony is that it was Microsoft who sought very aggressively through the 1970s and early 1980s to PREVENT the patenting of software, because they didn't want to have to worry about big guns like IBM, DEC, HP, Sperry, Harris, Lotus, and AT&T patenting software and then using that as leverage to either extract profits from Microsoft or prevent Microsoft from competing in their markets.

Imagine if IBM had been able to patent all of the software used in OS/ 2 before giving the technology to Microsoft. If IBM had been able to do that, there wouldn't be a Windows NT, there probably wouldn't be a Windows 3.1 or a Windows 95 either.

Imagine if Xerox had been able to patent all of their object oriented technologies and all of the devices in the Xerox Alto back in 1978. Microsoft and Apple wouldn't have been able to reverse engineer the technology and sell it without paying a dime to the Xerox or Palo Alto Research Center.

Imagine if HP had been able to patent their vector graphics algorithms and scalable vector graphics back in the 1970s, when the were doing plotters. Microsoft and Adobe would have had to pay a premium price to HP.

Imagine if Tektronics had been able to patent it's interactive graphics software back in the 1960s and 1970s. Much of the technology used in PowerPoint, Excel charts, and might have been locked up by a company that didn't want to be put out of business by $1000 PCs.

Imagine if SCO had been able to patent their OpenDesktop - No Windows 9x or NT 4.0 or XP desktops.

How about Sun and NetView and OpenView - if Sun had held patents on that technology, they could have locked Microsoft out of the market.

What if the contributors to Motif (HP, IBM, DEC, CMU, MIT,...) had been able to patent that technology. They could have prevented HP from selling the technology to Microsoft without giving those companies and contributors control over Microsoft's licenses. My guess is that the MIT graduates would not have been so willing to let Microsoft lock out UNIX and Linux in their software licenses.

Imagine if the Open Source community as far back as the 1960s had been able to patent their technology, mandating that all who use it, in ANY FORM, use it under the terms of the GPL. Most of Microsoft Office would be GPL, and even much of Windows might have been under GPL. It's a sure bet that Marc Andreeson wouldn't have let Microsoft produce anything even remotely like a browser without either having complete control over Microsoft's software licenses or being able to force Microsoft to publish the NCSA licensed source code.

Even Microsoft's media players is based on software developed by Kodak for image management and media management back in the 1980s and early 1990s. Software that Kodak was not allowed to patent (applied for and rejected), because the patent office would not permit the patenting of an algorithm or recipe or "software device" unless an identically functioning software device could be implemented entirely in discreet logic. Ironically, for many of the software devices that were patented, the "hardware" device was often implemented using programmable gate arrays rather than actual discrete integrated circuits and transistors.

About 90% of the value of Microsoft today is a direct result of their ability to legally reverse engineer and steal algorithms and intellectual property from former partners, competitors, and Open Source, and remarket it as Windows and Office, unfettered by the desires and requirements of others.

> | No, our work is to change the industry, not the behavior of but one of its > | participants.

Yes, now that, for the first time in 25 years, we have a competitor we can't buy, bankrupt, or control, and that competitor is continuing to expand market share and erode our 85% profit margins down to 45%, Microsoft must resort to trying to sneak as many patents past the patent office as possible, providing as little prior art as possible, in order to get patents that Microsoft can use to prevent OEMs, corporate customers, and government regulators from making a mass exodus from Windows and Office to Linux and Open Office, not to mention thousands of other competitor and third party products that Microsoft will no longer be able to "lock out" through it's exclusive OEM contracts.

> | The place to start (and end?) is patents, which most everyone > | seems to hate,

Especially Microsoft. Microsoft hates patents more than anybody, especially when the only way to nullify a patent and win a judgement in Microsoft's favor, is to trot out dozens of Open Source devices and prior art, and admit that they used that code and technology as their model. It would nullify the patents, but it might also nullify hundreds or thousands of Microsoft patents as well.

> | yet most everyone also seems to continue arming themselves > | with patents in a mad race to mutually assured destruction. A Cold War, all > | over again.

Most of the rest of the industry, including IBM, HP, Sun, and Kodak, some of the companies who consistently file the highest number of patent applications and are granted the greatest number of patents, tend to use these patents DEFENSIVELY. They combine with other patent portfolio holders in order to establish a huge patent "umbrella" designed to protect them from unethical lawyers representing naive clients. An "inventor" reads some articles in some magazines, comes up with an "idea" based on those articles, and then goes to one of those 1-800-PATENTME lawyers, who files a very poor quility patent, keeps publicity to an absolute minimum, and then waits for the Patent and Trademark Office to award the patent. Then they find a big company, like IBM, HP, Sun, Kodak, or Microsoft, and file a lawsuit for hundreds of millions of dollars, along with a barrage of about 2,000 initial disclosure filings. Many of these lawyers even use Mail- Merge documents to print up the canned forms.

The defendant knows that this is only the beginning, and that every motion will cost thousands of dollars to satisfy, so they offer a "settlement" for the entire portfolio held by the lawyer, including lots of useless inventions, that typically amounts to what the company would have spent satisfying the disclosure orders for this one case, often just 3-4 million dollars.

Since the lawyer is working on contingency, and gets a third, and they are a partner in the patent portfolio and entitled to half the remaining royalties, and may have qualified the inventor as an "employee" based on token consideration paid in advance of the patent filing, the inventors may not see a dime of the settlement for any of their inventions.

> http://news.cnet.com/8301-13505_3-10000366-16.html

> Yesterday: > Microsoft loses 90 Billion Dollars [in less than a year] > http://slated.org/microsoft_loses_90_billion_dollars

Microsoft has been trying to maintain the value of their stock through buy-backs and dividends which effectively set a "floor" price for the stock. In addition, even though Gates has been selling as much as 1 million shares a day, he's been selling that stock directly to Microsoft, which again looks better on paper than if he "dumped" that stock on the open market.

The problem is that the real value of the stock is still based on the fundamentals, including revenues, expenses, net profit, and earnings per share, as well as profit margins.

For several years now, Microsoft has been boasting of their 85% profit margins, 20-25% top-line growth, and nonexistent debt.

This most recent quarter has shown profit margins dropping to 45%, and top-line growth in core business only growing by 10-15% and much of that seems to be as a result of "Double Dipping", selling OEMs Vista Home Premium, then selling them Vista Business Edition, for almost as many computers.

These lucrative contracts expire at the end of July or the end of August depending on the OEM or CIO involved. The OEMs are willing to offer slightly higher rates per license, but only on condition of more flexibility in how the final system is configured (Windows as VM, Windows XP images, and Vista "Lite" images. They are also insisting on a single rate single license which can be either Vista Home Premium OR Vista Business, either of which can be "downgraded" even to Vista Home Basic if the customer wants a "Lightweight" image for VM configuration..

The other thing the OEMs seem to be demanding is the ability to control the boot sequence, including the ability to boot Linux first, then start Windows after that. The user can then "switch" between Windows and Linux, or put Windows in one of the Linux windows and have the "best of both worlds" the same way Mac users do.

For HP, Dell, Acer, and Lenovo, the competitor to beat is no longer one of the Windows OEMs, it's Apple, who offers both a high-quality UNIX environment, AND a low-cost Windows environment, in a single computer, with both systems running concurrently.

Keep in mind that Microsoft offered this to Mac because OS/X was doing so well on it's own that Microsoft was afraid of being knocked completely out of the Apple marketplace, followed by a rapid expansion of OS/X UNIX WITHOUT MICROSOFT. Had this formula succeeded, even if it took slightly longer, Microsoft was at risk of becoming completely irrelevant.

At least this way, the OEMs still pay for a copy of Vista on every desktop and laptop, and they even pay a slightly higher price. In addition, Corporate and Institutional customers who want to stick with XP rather than Vista will still be able to have "dual-mode" capability with XP, and Microsoft can still charge them for transferable licenses if the institution hasn't already purchased them.

> Recent: > Microsoft sees slide in profits > http://news.bbc.co.uk/1/hi/business/7366106.stm

Keep in mind that a slide from 85% margins to 45% margins is a problem that most CEOs would LOVE to have, but many of those same CEOs are still rather unwilling to give some huge percentage of their 10-20% margins to feed Microsoft's 45% margins. This is one of the reasons that they are not terribly keen on mass migrations to yet another Microsoft monopoly solution.

Of course, Microsoft is also up to their usual "Dirty Tricks", trying to get disgruntled employees to "drop the dime" on their employers for copyright violations. This improves Microsoft's ability to blackmail the CIO into accepting the mandatory updates. Unfortunately, many CIOs have now established formal anti-piracy policies, and are encouraging their employees to use Open Source applications instead of pirating "share-ware" and leaving it unregistered.

Many companies even have automated "software audits" and will notify an employee's manager of "security Violations", including unregistered share-ware. Even when a company does permit shareware, they often provide their employees with the tools to install registered shareware, that has been licensed at an enterprise rate.

With measures like these in place, the CIO and IT management are much less vulnerable to the classic "blackmail by piracy". They can thank the BSA or other auditing service for identifying the problem, discipline the employee and his manager (which may or may not also involve termination), remove the offending software automatically, and request a second audit after 30 days (the notice BSA usually gives when their first "surprise audit" finds indications of piracy.

Ironically, services like Microsofts SMS, IBM's Tivoli software management, and other third party "Security Audit" tools have made the anti-piracy much easier to manage and monitor. In addition, the use of a "standard corporate image", provides a solid argument that the CIO had not specifically granted permission for the piracy, that anti- piracy policies were in place.

The bigger problem for Microsoft, is that all this "Anti-Shareware" has killed the third party market and fed the Open Source market. As a result, you are much more likely to see OpenOffice, FireFox, Eclipse, and Cygwin and much less likely to see "trial versions" of commercial third party software. This of course, is also killing the ISV support for Vista, or even continued support for XP.

Perhaps this is why so many commercial Independent Software Vendors are now rolling out Linux versions (where there is less likelihood that the BSA will use their software to call in Microsoft).

Recent Techrights' Posts

Links 09/05/2026: "Grand Theft Oil Futures" and Mass Layoffs at Verizon
Links for the day
 
IBM's Kyndryl Holdings Inc Sank 70-75% in 'Value' in 10 Months, Will IBM Follow?
Kyndryl Holdings Inc now has a debt considerably higher than this company is said to be 'worth'!
Belated Sovereignty: GNU/Linux in Iran Skyrockets to 6% Amid Armed Conflict
unless they're truly in control of their networks, hardware and software, somebody else can control them
Microsoft XBox Staff Know They're in Trouble, They Try to Unionise Ahead of Mass Layoffs
As the slang goes, it's going to be a "bloodbath"
Gemini Links 09/05/2026: Liberation, The Nocturnals, Rediscovering Internet Radio, and More
Links for the day
Links 09/05/2026: Kremlin’s Biggest Day of the Year and FBI's Attack on the Media (to Save Face)
Links for the day
Google is "Bullshit"
Fix your slop, Google. It's broken.
SLAPP Censorship - Part 71 Out of 200: 5RB Barristers Made Tens of Thousands of Pounds by Changing From Plural to Singular for Microsoft's Graveley and Garrett
Could not even get the client's name right
Gemini Links 09/05/2026: Inkscape "Copy Text Style" and NomadNet
Links for the day
The Corrupt Lecture the Non-Corrupt - Part XVII - European Patent Office (EPO) Management Not Sharing Responsibility for Financial Resources
For those who wonder, EPO strikes are still going on
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 08, 2026
IRC logs for Friday, May 08, 2026
Gemini Links 08/05/2026: Slop Falsely Marketed to Greedy Administrators and New Official Maintainer of Antenna Confirmed
Links for the day
Links 08/05/2026: French Prosecutors Seek Charges Against MElon, Europe Wants Young People Without Skinnerboxes (Smartphones)
Links for the day
2,000-4,000 More Layoffs Expected at IBM's Kyndryl, Some Say Over 10,000 Layoffs
They use euphemisms like "restructuring" or "rebalancing"
Social Control Media and GAFAM as National Security Threats (Domestically and More So Abroad)
"Algorithms control messages, swayed 2024 presidential election"
Gemini Links 08/05/2026: Dissociated Pride and Prejudice, Smallnet Protocols Roundup
Links for the day
Links 08/05/2026: Slop Profiteer NVIDIA (and Circular Financing/Accounting Fraud Leader) May Be Liable for Mass Copyright Infringement, Kyndryl (IBM) Layoffs
Links for the day
Outgoing OSI Chief Was Paid by Microsoft to Advocate for GPL Violations (Using the OSI's Name). Now, Inside OIN, He Says GPL Violations Are 'Freedom'.
It seems like only compromised people can be "allowed" to run today's OSI
SLAPP Censorship - Part 70 Out of 200: Microsoft's Graveley Injunction Request 100% the Same as Garrett's (Pure 'Copy-paste', Not Even a Word or Single Character Changed!)
Not so funny at all
Over 97% of the 'Linux' Foundation's Budget Goes Not to Linux
There is a term for this: mission creep
Cloudflare is a Giant Pile of Debt, Now There Are Mass Layoffs and Media Coverage About This is Churnalism, Sometimes by Slopfarms (False Excuses)
If Cloudflare goes under, it'll be great news
NDAs as a Price Tag on Criticism (or Honest Expressions of Opinion)
What ever happened to accountability? Suppressed by reverse bribes (via NDAs)?
Internal Microsoft Communications Confirm: "Buyout" Offer Worse Than a Year's Salary and Microsoft Offers "Retirement" to Young People Who Cannot Retire
Does that sound like a good offer or marching orders?
It's Not a GAFAM World Anymore and There Are Far More Operating Systems Than Google's, Apple's, and Microsoft's
we're not getting the full picture of what's happening
Site Overhauls at Cybershow and at analognowhere.com (Less is More!)
They seem to be replacing the heavy PHP backend with static HTML pages
Microsoft's XBox is Going Away Like Microsoft's Skype (Slowly But Surely, Then All at Once)
XBox is dying rapidly
Codecs and Software Patents - Part IV - Things Got So Bad That Some Laptop Sales Got Banned in the EU (Over Software Patents!)
If software patents lead to such severe outcomes, shouldn't the media pay closer attention to the problem?
The Corrupt Lecture the Non-Corrupt - Part XVI - EPO Had Data Breaches, Covered Them Up, Now Lectures Staff That Didn't Do It and Didn't Cover It Up
Imagine what would happen to staff if (non-anonymously) blowing the whistle on management leaking and then covering up EPO data breaches
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 07, 2026
IRC logs for Thursday, May 07, 2026
Mass Layoffs at IBM's Kyndryl, Slop Won't Save Kyndryl
Kyndryl is a "done deal". It's done. It's finished.
Kyndryl Holdings Inc Falls Almost 15% in 2 Days, What Does That Tell Us About IBM?
The "Big Blue" 'shell game' isn't working
Companies That Say They Are "Hey Hi" (AI) Leaders Don't Really Do Well, They Have Mass Layoffs Because Hype and Storytelling Won't Live Up to Shareholders' Expectations
Microsoft's investment in slop is not going well
Gemini Links 07/05/2026: Unicode and "RSS 4 Noobs (Getting Started)"
Links for the day
During IBM's Annual Event/Bash IBM's Stock Fell to (Almost) Lowest Level in a Year, Insiders Explain "IBM is on the Brink of Collapse."
Anthropic - like IBM - pays the media for puff pieces, exaggerations, and obvious vapourware
Servers Became "Cloud", VR Became "Metaverse", Now Bots Become "Agents" (of Slop)
Changing the name of things won't prevent rejection, only delay the negative reaction some more
Links 07/05/2026: "The ‘Perfect Storm’ Hanging Over Britain’s Public Debt" and "Internet Shutdowns Spread in Africa"
Links for the day
OSI Partners With Microsoft to Help Pretend Proprietary (GitHub) 'Celebrates' Open Source
And a Microsoft operative announced this as well
Links 07/05/2026: "Most Vibe-coded (Slop) Tools Are Not for You" and "Prepare for the PCB Shortage"
Links for the day
SLAPP Censorship - Part 69 Out of 200: Microsoft's Graveley Strangles, Gets Arrested, Charged, Then Asks for Apology From Those Who Reported It by Recycling Garrett's Plea for Apology
Garrett realised that his "funny" lawsuit wasn't so funny anymore
Codecs and Software Patents - Part III - AOMedia Video 1 (AV1) and Antitrust Issues
As we'll show in later parts, this already results in bans of some hardware sales in Europe
The Corrupt Lecture the Non-Corrupt - Part XV - Talking About Responsibility and Accountability While Failing to Hold Themselves Accountable
what outlet is there for justice or for the Rule of Law?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 06, 2026
IRC logs for Wednesday, May 06, 2026
Gemini Links 07/05/2026: Dissociated Jekyll And Hyde, New Antenna 2.0.0
Links for the day