Bonum Certa Men Certa

Microsoft's Choice: Patent-Trolling to Death or Real Patent Reform

Nathan Myhrvold



Summary: The US patent system preys on Canadians as Microsoft's infringement goes to SCOTUS and RIM wants a patent shield shortly after Microsoft's patent troll, Nathan Myhrvold (the company's extortion arm), put a tax on every BlackBerry; Apple too goes trigger-happy against Linux, having given investment money to this same patent troll

Microsoft should just defect to the side which works to abolish software patents and if not, then shareholders of Microsoft should start criticising the company's strategy. As things stand at the moment, Microsoft is bombarded with patent lawsuits and Groklaw explains why Free software cares about the i4i case which we last mentioned this morning (it goes beyond the Canadian media due to escalation to SCOTUS, which got the lawyers [1, 2] and the MSBBC paying closer attention). To quote Groklaw:





Today is the day scheduled for oral argument before the US Supreme Court in the appeal of the i4i v. Microsoft patent litigation. The appeal is focused on an issue that matters to FOSS a great deal. EFF, Public Knowledge, and the Apache Foundation have filed an amicus brief [PDF] that explains to the court why it matters so much and with such particularity to the FOSS community. I've done it as text for you.

I'll let them explain the details, but the big picture is that US patent law, largely due to the Federal Circuit's broadening of plaintiffs' rights, is hard on defendants and harder still on FOSS defendants, because FOSS uses a development model that doesn't match the patent law as currently interpreted by the Federal Circuit.

The issue before the US Supreme Court is this, in plain English: how hard should it be to prove that a patent that the USPTO has issued is invalid? How about if you have evidence that the USPTO examiner never looked at? Should juries assume that the USPTO got it right? I smile just writing that. With FOSS software, it's almost impossible for an examiner to find prior art, unless it's been patented, which it almost never is, given the restrictions on what examiners can search through. And you may be surprised when you read what the courts require as proof. I am pretty sure that after you read this brief, you'll see how unbalanced the current system is, how it disadvantages FOSS defendants, and hopefully you'll notice some things you can do to help balance out the playing field. I hope the court sees the unfairness too, and I hope they care.

The bottom line for me remains that software and patents need to get a divorce. But anything that we or the courts or Congress can do to ameliorate the strange and damaging tilt toward patent plaintiffs to the detriment of defendants is to the good. The law is supposed to be fair to both plaintiffs and defendants, but with patent law, it absolutely isn't, as the brief will show you. The damage being done to innovation is enormous already, and with Microsoft on a march to rape and pillage FOSS and force the community -- most especially Android -- to pay royalties for patents that could be invalidated in a more fair system but which it can use as anticompetitive weapons unless something is done to shortcircuit their strategy, this case is vitally important.


As Mr. Arthur put it, "Microsoft seeks to weaken software patent rules at US Supreme Court":

A software patent case in which Microsoft was accused of wilfully infringing a patent on XML - and forced to suspend sales of Word and Office - reaches the US Supreme Court on Monday afternoon UK time and could have a wide-ranging effect on future litigation.


How long can Microsoft pretend that software patents which are asserted against Microsoft are invalid whereas those which is uses to extort others are valid? In some cases, as in the VirnetX case for example, Microsoft must pay a lot of money to a company which according to this new report "does not currently have any sources of revenue from operations."

It is a patent troll. When Microsoft quits areas like mobile (due to failure), Microsoft's mobile division too will become a patent troll. Microsoft is currently busy trying to extort all sellers of Android/Linux, so Google, in turn, is competing to inherit the patent portfolio which currently 'belongs' to Nortel. There is competition over it, reportedly from RIM [1, 2, 3, 4], which is the latest victim to be massively extorted by the world's largest patent troll, Microsoft's very own patent troll, Intellectual Ventures (it also extorted Android, at least at Samsung and HTC).

Here is a new pinion piece by Doug Lichtman (at the New York Times). It implies rather than states that the patent office has been subverted by leeches like Intellectual Ventures. To quote: [via Groklaw]

ON Monday the Supreme Court will consider whether to fundamentally alter the way American patent law is litigated. Specifically, in the context of an otherwise unremarkable patent dispute, the Court has promised to decide the degree to which juries should be allowed to question whether a patent should have been issued at all.

It’s a critical issue: the current approach, under which juries are explicitly discouraged from questioning a patent’s validity, all too often means that dubious patents are nevertheless enforced. That inhibits innovation, the very thing that patent law is supposed to encourage.

[...]

These problems could in theory be fixed with more money. But resources aren’t the only issue. The extent and quality of Patent Office review is also limited by the fact that the process is not adversarial. Indeed, the only parties involved in Patent Office review are the applicant and the applicant’s lawyers — people with an obvious incentive to see the application move forward. Contrast that with litigation, where patent plaintiffs have to square off against very motivated patent defendants.


The last bit there is important. it validates calls to abolish the patent office or reboot it such that it actually serves the public and not the lobbyists of Bill Gates and his buddy Nathan Myhrvold. Microsoft does not want software patents to go away because people up there at the top of Microsoft are still cashing in, at the expense of everyone else. That's what patents are for, they are simply a monopolist's dream. Apple is no better in that regard, e.g. with its latest anti-Linux patent lawsuit. Boycott Apple, the expensive imitators.

"We've always been shameless about stealing great ideas."

--Steve Jobs

Comments

Recent Techrights' Posts

Links 17/07/2026: Microsoft is Cutting OneDrive Coverage, Larry Ellison Sued by Paramount Investor
Links for the day
Microsoft Whistleblowers Explain How Brutal the Latest Cull is (Layoffs in Seconds-Long Calls, Mass Elimination of Whole Studios and High-Level Officials)
we see anonymous leakers or whistleblowers in the media today
 
Richard Stallman Always Cautioned, Upfront, That His Political Views Were Wholly Separate From His Scientific Work or GNU
Notice that he already spoke a lot about politics
Nichirei and Asahi Beer Need to Take Cyberattacks as Hint of Opportunity to Move to Free Software
Windows TCO
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 16, 2026
IRC logs for Thursday, July 16, 2026
Gemini Links 17/07/2026: Sunlight in the Clouds, Techno-Therapy, and Sloppifying Original Text
Links for the day
Links 16/07/2026: Slop Recognised as a Waste of Energy, Hong Kong Cracking Down on Dissent/Opposition Some More
Links for the day
GNU/Linux Approaching 5% "Market Share" in Oceania, Almost Trebling in 12 Months
It is difficult to ignore the gains made by GNU/Linux this month
Gemini Links 16/07/2026: esp32-gemserv, Slop-Contaminated Free Software, and Moving Systems
Links for the day
Last Summer Microsoft Mass Layoffs Came in Two Large Waves, Rumours Say Next Week Another Large Wave is Coming
If many more Microsoft layoffs are formally admitted next week we will not be surprised
Tomorrow is Another Strike Day at Europe's Second-Largest Institution, the Media is Still Deliberately Ignoring It
Fridays are now recommended “anchor days" for EPO strikes
Public Interest News Foundation Shows News Drought or News Deserts in the United Kingdom
Public Interest News Foundation shows that we should be deeply concerned
Illusions of Choice
Choices can be differently bad or equally bad
Windows Down to 10% in India
Windows is a "burning platform"
One Year Has Passed
Our aim is to repair an injured system wherein "abuse of process" can be turned into a weapon, leveraged even by foreigners who are funded by affluent third parties
Techrights is Annoying People Who Work for (and Serve) People Who Annoy (and Abuse) Society
Working against us (instead of with us) has historically been a bad strategy
No Skinnerboxes, No Slop, No False Idols or Corporate Prophets
Torvalds does not understand the everyday struggles of tech workers and tech users because he is a millionaire
IBM's Next Stop: $199 (Market Cap Already Under 2.5 Times IBM's Debt)
Don't rush to call us "sensationalist" over it
Links 16/07/2026: Solar Greenwashing by Energy-Wasting GAFAM and Growing Concerns About Harm by Social Control Media
Links for the day
Gemini Links 16/07/2026: Photography, Agility, and "Today I have Truly Become a Linux User."
Links for the day
Rebellion Brewing at Microsoft
As always, we welcome Microsoft whistleblowers
Technology Against Human Nature
Losing a sense of what it means to be alive
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 15, 2026
IRC logs for Wednesday, July 15, 2026
IBM Down to $211.20, the Market in General is Up
No recovery for IBM today
UEFI 'Secure Boot' Still Not Secure in 2026, New Holes (or Bypasses) Still Being Found
In 2026 there are still many people who call it "secure" and pretend to themselves that it is about security. It's not. It never was.
Gemini Links 15/07/2026: Lab 6, Retrospective 2, and "Getting Back Into Gemini"
Links for the day
Links 15/07/2026: "Gianni Infantino Under Fire" and "Todd Blanche's Record Raises Alarming Questions About the Future of the US DOJ"
Links for the day
Allegedly More IBM RAs (Mass Layoffs) Same Day the Stock Crashed
No paper trail, so it never happened, right?
Techrights Was Right: Microsoft's Layoffs Tally Was False, Far More People Are Being Sacked
"The Xbox Bloodbath Is Actually Way Bigger Than It Seems"
Get Ready for Increase in PIPs and RAs at IBM, Red Hat, and Other Companies Devoured by IBM
IBM's "market cap" has just fallen to 199 billion dollars and it has about 70 billion dollars in debt
IBM Sinking to Lowest Levels Since 2024, But Will Any Executives Be Arrested for Securities Fraud?
52-week high of $332.46 and now down to $212.94
Microsoft Whistleblowers Say "The Entire Thing is Going to Fall Apart" and There Are "No Benefits" to Being Part of Microsoft
"Multiple sources, who chose to remain anonymous for fear of reprisal"
IBM's Crash Continues Today
Stocks go up and down, but they don't typically go down by over 25% in a single day
Like Kyndryl, Multiple Securities Fraud Investigations Into IBM
Remember what happened to Kyndryl
How Long Before GNU/Linux is Measured at 20% in Chad?
The main way to get people to adopt Vista 11 is to sell them a new PCs and in poor countries it happens a lot less
Making Techrights Faster Down Under (Australia and New Zealand)
there's more to life than speed
Strikes at the EPO Approved for the Rest of the Year, "€1,3 Billion Taken From Staff Income"
Intensity can be revised and increased over time
Focusing on What We Really Ought to Focus on
Today we'll focus mostly on EPO affairs
Violence is Not a Joke
"Police say Widdecombe killing was targeted but motive remains unclear"
How to Properly Measure the Performance of a Patent Office
A "contribution from staff [which] is published by SUEPO Munich."
Who Next After IBM? (Bubbles Don't Last Forever)
the demise of companies with "ai" in their name/domain
EPO "Cocaine Communication Manager" - Part XIV - "Not One of Us" (How the Group Dubbed by EPO Insiders "Alicante Mafia" Pushes Out Talent, Replacing It With Friends)
misuses the EPO's budget like it is a fountain of money for his friends
LibreTech Collective Abandons Microsoft GitHub and All Other Proprietary Software
Each time a project eliminates control by a hostile party it stands to gain
GNU/Linux Estimated at 8% "Market Share" Today (in statCounter)
Days ago it said 7.1%, then 7.3% or 7.4%
Links 15/07/2026: US Regime "Cuts Two Utah National Monuments by More Than 90%", "Hormuz is Less Crucial Than It Was"
Links for the day
Gemini Links 15/07/2026: Old Computer Challenge, "Trial by Fire", LLM Slop Destroying Companies
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 14, 2026
IRC logs for Tuesday, July 14, 2026