Bonum Certa Men Certa

Chapter 7: Patent War -- Use Low-Quality Patents to Prove That All Software Rips Off Your Company

Table of Contents

Introduction: Cover and quick Introduction [PDF]

Chapter 1: Know your enemies-- Act like a friend [PDF]

Chapter 2: Work with the system-- Use OEMs and your legal team [PDF]

Chapter 3: Playing the victim-- Show the world that too much freedom hurts development [PDF]

Chapter 4: You get what you pay for-- Getting skeptics to work for you [PDF]

Chapter 5: Open Source Judo-- How to bribe the moderates to your side [PDF]

Chapter 6: Damning with faint praise-- Take the right examples of free software and exploit them for everything [PDF]

You are here ☞ Chapter 7: Patent War-- Use low-quality patents to prove that all software rips off your company [PDF]

Chapter 8: A foot in the door-- how to train sympathetic developers and infiltrate other projects

Chapter 9: Ownership through Branding-- Change the names, and change the world

Chapter 10: Moving forward-- Getting the best results from Open source with your monopoly




Summary: Patents in the United States last for 20 years from the time of filing. Prior to 1994, the patent term was 17 years from when the patent was issued.

Patents in the United States last for 20 years from the time of filing. Prior to 1994, the patent term was 17 years from when the patent was issued.



Bill Gates was originally against the use of patents for software, because of the problems they create for developers in every company, including Microsoft:

"It's important to point out that there is no such thing as “patentable ideas” in the United States."“Amazingly we haven't found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren't simple problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas.”

This was from a confidential 1991 memo which was published by a court.

From http://en.swpat.org/wiki/Bill_Gates_on_software_patents



It's important to point out that there is no such thing as “patentable ideas” in the United States. Utility patents can be issued for a process, a machine, a “manufacture” or a composition of matter (for example, if you develop a new non-stick coating for pans.)

A patent cannot be issued for something too abstract-- From an IP standpoint, the worst-case scenario is to have a copyrighted program classified similarly to a recipe or worse, a mathematical equation.

"The copyright is on the expression or implementation of the recipe (the wording) or the program (the code.) There is no copyright on the process or the concepts implemented."When Intel patents a physical device like a CPU, their IP covers some of the processes and physical designs, the goals of which are to carry out computer instructions. When we write computer instructions, we get a copyright on those instructions-- similarly to how a recipe is copyrighted. The copyright is on the expression or implementation of the recipe (the wording) or the program (the code.) There is no copyright on the process or the concepts implemented.

Thus, if people have access to our code they can implement some of our programs in a slightly different way. To prevent other people from creating a taskbar, or a search engine, or some other software we want to be the sole providers of, we need to find a way to apply patents to our work. One way to do that is to define a “computer implemented process” (a program) using patent terminology.

"To prevent other people from creating a taskbar, or a search engine, or some other software we want to be the sole providers of, we need to find a way to apply patents to our work."The CPU is already designed (and granted a patent) for performing its instructions, which makes for an interesting legal challenge to get a second patent on doing things the CPU is already designed to do-- for example, Toyota may already have a patent on a car, but if nobody has a patent on using a car to deliver pizza as part of a business model, there is a possibility of threatening competing pizza places for infringing on that process.

Another limitation we run into is that patents have to be on things that are novel and non-obvious to people in the field. To get around this and the other requirements, we have our legal team apply for countless patents using the most absurd, drawn-out, vague language possible.

If we drag a competitor to court using such patents and they have a competent legal team to defend them, we will probably lose several of these patents and possibly the case against them. However, if we have a very large company and a very powerful legal team, the competitor may decide (upon receiving threats about such a lawsuit and a request to stop infringing on our very large portfolios containing thousands of vague patents or more) to simply give up and cede to our demands for compliance— whether it is to pay royalties or stop offering a particular feature altogether.

"Still, as recently as 2014 Microsoft was still enjoying what amounted to an End-User-License-Agreement attached to the .Net framework-- enforced through an agreement to no sue over patents."Such patent battles have allowed Apple to harass companies with design patents over such trivial matters as rounded corners-- and to claim they invented a “slide-to-unlock” feature— which has existed on barnyard gates for hundreds of years at least, but never before on the screen of a smartphone! In fact you could say that their “slide-to-unlock” feature is really just the “scrollbar widget” that was probably invented by Xerox in the 1970s, but never before was it used to unlock a screen-- you get the picture.

Several efforts were made to reduce the viability of these strategic patent portfolios, and give legitimate companies a chance to thrive despite our larger businesses and more powerful legal teams. Prior to 2000 it was difficult to address these challenges, but with lobbyists working to reshape Washington to suit our needs above others, we can fight against laws that put smaller companies on more comparable legal footing.

Still, as recently as 2014 Microsoft was still enjoying what amounted to an End-User-License-Agreement attached to the .Net framework-- enforced through an agreement to no sue over patents. Even as software patents lose their potency, the agreements companies were coerced to participate in under these patent-protection schemes remain.

"Another possibility is to simply tie the license for certain high-value proprietary components to similar EULA-esque agreements as Microsoft did in the past."As said early, one possible avenue is to continue to offer protection against future, hypothetical patent aggression, based on the possibility of overturning Alice Corp. v. CLS Bank International/35 U.S.C. €§ 101 (whether or not that could happen) or based on global enforcement of patents in Europe or Asia.

Another possibility is to simply tie the license for certain high-value proprietary components to similar EULA-esque agreements as Microsoft did in the past. With new investments from Apple, IBM and Microsoft into cloudware, overt proprietary licensing has taken a backseat while covert threats of strategic patent litigation are relied on. So if the patent angle falls apart, a simple return to “Shared Source” or cloudware/freemium-like access to certain enterprise features could form the basis of similar agreements in lieu of patent threats.

Relevant quotes from the Halloween documents:

“The primary threat Microsoft faces from Linux is against NT Server.”

“UNIX's perceived Scaleability, Interopability, Availability, and Manageability (SIAM) advantages over NT.”

“Linux can win as long as services / protocols are commodities”

“Linux's homebase is currently commodity network and server infrastructure. By folding extended functionality (e.g. Storage+ in file systems, DAV/POD for networking) into today's commodity services, we raise the bar & change the rules of the game.”

“Via tools such as enterprise agreements, long term research, executive keynotes, etc., Microsoft is able to commit to a long term vision and create a greater sense of long term order than an OSS process.”

From https://antitrust.slated.org/halloween/halloween3.html



“The effect of patents and copyright in combatting Linux remains to be investigated.”

“It plants the idea that any MIS manager so foolish as to use Linux will find his operating system yanked out from under him by a future patent lawsuit”

“Microsoft truly behaves as though it corporately believes that there's only a fixed pool of key ideas, most already discovered, which software designers must squabble over in zero-sum competition until the end of time. In that game, the only definition of `winning' is cornering enough goodies to guarantee you a monopoly lock.”

From https://antitrust.slated.org/halloween/halloween3.html



“We need to keep hammering on the difference between source that you can see only after signing a Microsoft NDA or non-competition agreement and source that anyone can examine, modify, and redistribute.”

“The risk that Microsoft will go on a patent-lawsuit rampage, designed more to scare potential open-source users than to actually shut down developers, is substantial. The language about “concrete actions” in relation to IPR has the same ominous feel”

“Seventy-four percent (74%) of Americans and 82% of Swedes stated that the risk of being sued over Linux patent violations made them feel less favorable towards Linux.”

From https://antitrust.slated.org/halloween/halloween7.html



“Our SCOsource licensing revenue to date has been generated from license agreements that are non-exclusive, perpetual, royalty-free, paid up licenses to utilize our UNIX source code, including the right to sublicense.”

“SCO holds no Unix patents; the state and disposition of the Unix copyrights is unclear and presently disputed between SCO and Novell”

“When a company decides to release existing proprietary code as Open Source, the show-stopper is almost always the other parties outside of that company who are involved. Such parties become involved through patents that have been licensed, proprietary code that has been produced by a third party and embedded into the product, and existing contracts relating to the product that have been entered into with customers or other vendors.”

“because it's possible to infringe a patent you've never heard of: you can never be sure there isn't some patent somewhere that you're infringing among the millions of patents granted annually.”

“SCO has also repeatedly made and withdrawn allegations about patents in the trade press.”

From https://antitrust.slated.org/halloween/halloween9.html



“Caldera/SCO has a long history of lawsuits over obsolete technologies stripped out of dead companies — starting with DR-DOS from Digital Research and continuing through USL's System V into the present with the IBM lawsuit.”

From https://antitrust.slated.org/halloween/halloween10.html

Recent Techrights' Posts

Kazakhstan Doesn't Need GAFAM Datacentres (Spy Hubs)
Suffice to say, as far as we can gather nothing came out from the empty (false) promises of GAFAM's "data centers in Kazakhstan"
Christmas Music Project: Back to When Music Was Music
now Canonical (or Ubuntu) says we should make available tens of gigabytes of disk space
Browsing Techrights With a GUI and 10 Megabytes of RAM Per Tab
Some people say it's not possible in 2025, maybe in part because they depend on very bloated software
Gemini Links 25/12/2025: Hibernation and TV Detox
Links for the day
 
Free Software Foundation (FSF) Supported by Unconventional Digital Bartering Communities
But no strings attached
Geminispace: 5,000 Capsules in 2026
There are 4.8k now
Gemini Links 26/12/2025: Careful What You Eat and "My Secret Santa"
Links for the day
The Indigenous Community Versus Corporate AstroTurt and 'Cancel Culture'
Good people will recognise exactly what's happening here and respond to it tactfully
Richard Stallman: Epstein is a Serial Rapist. Bill Epsteingate: Epstein is a Friend.
Supporting the FSF (or Richard Stallman) is supporting those who asserted Epstein had serially raped women
The Paradox of GAFAM: Saying You Protect Women, Appointing Abusers of Women to Run the Company
older articles
Censored by FreeBSD Core Team Secretary, Reinstated After Talking About it in Public
FreeBSD misfiring a CoC?
Links 26/12/2025: Chatbot Toys Terrorising Children, US Undeclared "War on Terror" Unilaterally Extends to Nigeria During Holidays
Links for the day
Links 26/12/2025: French Postal Services Under Russian Attack, U.S. Cheetos Accuse People Who Obstruct Information Warfare by Russia of "Censorship"
Links for the day
Debian's Daniel Kahn Gillmor is Wrong, Signal is No "Gold Standard" (It's Also Promoted by Proponents of Back Doors)
I'm not too sure why Debian or the ACLU would wish to associate with this
Next Year Will be the Year of Quantum, Just Like 2020, 2015, 2010, 2005 and So On
"Quantum" is the future
The Silent Power of Coercion Over Speech
The important thing is optics
So Simple That You Can Touch and Feel It
In light of recent experiences
Internet Relay Chat (IRC) Under Attack by Cross-Network Spam Floods
So far we've been spared (our network has not been targeted at all) [...] Let's hope the spam won't discourage the hundreds of thousands of people worldwide who still use IRC
An "AI-Infused" Windows
Microsoft Windows isn't becoming a worthless pile of garbage by accident
Microsoft Laid Off Over 30,000 People This Year, Coders Are "Too Expensive"
Go get some popcorn. Microsoft "slopware" is about to get real!
Critics Have Long Said Microsoft Produces "Slopware", Microsoft Wants to Prove Them Right
Slop instead of code is a step in the right direction?
The Top 8 Innovations of IBM in 2025
What innovations will come out from IBM in 2026?
And as the Year Turns...
The significance of new years isn't based on geology or astronomy or anything like that
Appliances Versus Computers
Replacing a computer inside an object of some kind or inside an appliance (which nowadays includes "modern" cars) isn't simple and isn't cheap
A Dark Side of Europe
They try hard to silence people who speak about these issues
Why People Love Techrights (and Also Loved "Boycott Novell")
I will continue to publish for many decades to come
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 25, 2025
IRC logs for Thursday, December 25, 2025
A Tribute to Richard Stallman
It's about knowledge and sharing
Links 26/12/2025: Impermanence, Salt and Thermometer, Freetube
Links for the day
Canonical is Making the Cost of PCs Very High, Due to Unnecessary Ubuntu Bloat
They say the reason for the price surge is LLM hype/frenzy
Canonical's Ubuntu is Bloatware
How did Ubuntu get so fat?
The EPO is a Very Vicious Organisation You Neither Wish to Join Nor Stay in for "Too Long"
Consider what the EPO thinks of its own workers, the staff that actually does real work
2026 Will Hopefully Turn Out to be Slopless
we seem to be starting the post-Christmas period on the right footing
Links 25/12/2025: Mail Carriers in "a Murky Future", Dihydroxyacetone Man’s "Chip Embargo Against China Backfiring Spectacularly"
Links for the day
The Register MS: All I Want For Xmas is Microsoft
they actually put effort into it
How to Win Nobel Prize for Peace
Do you get to Heaven (or peace platitudes) by sleeping with 72 virgins?
The Right to Repair (Especially When Products Are So Poorly Made)
Many electrical appliances fail often/quick and are nearly impossible to repair
Links 25/12/2025: Ample Cover-up Found in Jeffrey Epstein Files; ChatGPT Causes Psychosis, Not a Good Use Case
Links for the day
Giving Money to Free Software
In life, people must make sacrifices to do what's right and just
The Register MS: Don't Use Linux
That really says a lot about The Register MS
EPO People Power - Part XV - EPO Cocainegate to Resume This Weekend
The next installment (number 16) will probably come out this weekend
Microsoft: XBox is Going "Online", "Cloud"...
XBox as a console is pretty much dead
The Year of the Bubble
We hope that in 2026 the marketing liars will find some new buzzwords to latch onto and quit calling everything "AI"
Mozilla Firefox is a GAFAM Browser With Slop, Move to a Free Software Web Browser
on mobile the options would be more limited
libera.chat Was Under Attack Last Night
Several months from now libera.chat turns 5
Free Software Foundation (FSF) Raises Over $300,000 Before Christmas
the FSF made it past $300,000
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, December 24, 2025
IRC logs for Wednesday, December 24, 2025
Sounds Like Microsoft 'Open' 'AI' (Slop) Ran Out of Money to Borrow
Maybe in 2026 slop will be scarce enough that eventually, maybe by year's end, we'll manage to just ignore it.
In India, Staff Works on Christmas Eve, Becomes Unemployed (Last Day)
The company fires based on how "expensive" workers are more often than based on their productivity
Links 24/12/2025: US TACOs on "China Chip Tariffs Until 2027", Russian Snickers in U.K. Convenience Shops
Links for the day
Links 24/12/2025: Cheeto President "Accused of Rape in Jeffrey Epstein Files", Windows to be Replaced by Slop?
Links for the day
Gemini Links 24/12/2025: Tea, Love During Pain, and Gaming This Year
Links for the day
GAFAM is a Bubble, Nothing is Free in This World
Nothing is free in the world
My New CD Player/Stereo Didn't Even Last a Year, My CD Player/Stereo From the Early 1990s Still Works
That helped reaffirm what I said in recent years about production/manufacturing standards of "modern" things
GitHub Isn't Free, Microsoft Subsidises It (Losses) to Entrap You Inside Proprietary Software, Now Come the Fees
GitHub was never free
XBox Console is Dead, "Microsoft is Rethinking What XBox is"
So XBox is now "cloud"
IBM SkillsBuild: Teaching Slop to People
What skills does that give? Making more slopfarms?
Maybe 2026 Will be the Last Year of António Campinos
Europe's patent system is run by thugs and it serves thugs
2025: The Year LLM Slop Rose to Prominence and Then Fell
the slop hype is bound to end
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, December 23, 2025
IRC logs for Tuesday, December 23, 2025
Links 24/12/2025: Spotify Surveillance and Shadow Over Rule of Law in Hong Kong
Links for the day