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

Jean-Slop Van Damme and the Art of Bull--- Code
it's saving neither time nor money
Reality Check About IBM's Louis Grestner, Slopfarms Say He Was IBM CEO for 30 Years!
It is "hallucinating" (lying)
Debt as the New Currency?
Rich people get richer because they take money from the rest of us, if not directly then by compelling us (collectively) to borrow money at a national level, then "invest" in them
EPO People Power - Part XIX - "Berenguer Has Known of Campinos' Substance Abuse First Hand For a Long Time"
"You rightfully claimed that Berenguer is Campinos' protegee"
 
Gemini Links 30/12/2025: FreeBSD, Gemlogs, and Xobaque
Links for the day
Get Ready for Gigantic XBox Layoffs at Microsoft (Much Bigger Than in 2025)
he unionisation drive is a sign workers already expect this
Concern Trolls: Stop Criticising Poor Gerstner Because Now He's Dead. Reality Check: Gerstner Has Found a Trick for Dodging Tax on His Hundreds of Millions in Wealth.
Maybe even billions in wealth
Samoa: GNU/Linux and ChromeOS Rose to Around 11%
based on Web access data from Samoa
DnD: Debian and Drugs
There will soon be some interesting new information about Debian
A Conundrum of Privacy/Surveillance: Will You Give Them a Stool Sample to "Feel Humane"?
What if skinnerboxes in South Korea also required that people provide urine and stool samples?
Nope, There's No Twitter "Successor"
There's a lot of horrible abuse going on in social control media
A Calm Year in IRC is a Good Year for IRC
Next year IRC will turn 38 (in August) and in 2028 it'll turn 40, just like the FSF did a couple of months ago
Slopfarms Covering Up for "Microsoft CEO Satya Nadella" After a Terrible Performance and a Terrible Year at Microsoft
How to cause many to resign/retire, hence not be counted as "layoffs"
IBM Was Never Saved, It Has Been a Downhill Journey for Decades Already
Gerstner wasn't a tech person but a fiscal butcher
Some GNU Joiners in Geminispace
Jose E. Marchesi (known for GNU poke and a bunch of other things) adopted Gemini Protocol
IBM Seems to be Doing to HashiCorp What It Did to Red Hat (Many Key People Leaving)
"Today marks my last day at HashiCorp, wrapping up an incredibly rewarding 5-year journey"
State of the Slop, Day 364
How does Phoronix feel about Google promoting slopfarms that 'rewrite' its stories and slap slop images on top?
Links 30/12/2025: "Durian Tsunami" and "Unneeded Surgeries"
Links for the day
Links 30/12/2025: Social Control Media Detox, Rage Against Slop Wasting People's Productive Capacities
Links for the day
Gemini Links 30/12/2025: Quitting Coffee, Apartment by the Beach, and Strange Retail Ethics
Links for the day
Nintendo and Sony Outsold Microsoft XBox by 15:1!
The mass layoffs indicate Microsoft is aware of this
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, December 29, 2025
IRC logs for Monday, December 29, 2025
Slopfarm: Firing 35,000 Employee is "Saving the Company"
"Big Blue" is getting smaller all the time
Slopfarms About the "Linux CEO" Linus Torvaldos [sic]
nowadays NVIDIA builds and helps build a giant Ponzi scheme
Vista 11 is "10" (Ten Percent)
Some months ago Microsoft openly admitted that it had lost (shed off) hundreds of millions of Windows users
Dealing With Online Pogroms
lawfare funded by third parties
The Year Apple Would Rather Forget
We await further stumbles and falls from Apple (in 2026)
"EU's reform agenda threatens to erase a decade of digital rights"
This is really sad for those of us who spent decades promoting and boosting/advocating the EU
IBM Layoffs in India, More Coming Soon, Say Apparent Insiders
Threads regarding IBM layoffs
Gemini Links 29/12/2025: Earlier "Happy New Year 2026" and "Dead Archivist Society"
Links for the day
Links 29/12/2025: Putin Critic Sergei Udaltsov Imprisoned, Cloudflare’s Outages Discussed
Links for the day
LLMs Are Inherently Parasitic, We Need to Treat Them Accordingly
a maintenance burden for those who possess actual intelligence
Links 29/12/2025: Bottled Water Considered Harmful, Cheetos Promoting Nazis in Europe
Links for the day
EPO People Power - Part XVIII - European Patent Office "Paints Itself as Progressive While Literally Being Represented by Cokeheads"
To what length/s will German authorities and media (not just in Germany) go to protect the EPO's "precious image"?
What IBM Will Do to Red Hat in the Coming Year or Years
This won't end up well for GNU/Linux as a whole
Not Turning in His Grave: When People Die, Their Corporate Destruction Becomes a "Turnaround"
All he did was mass layoffs - a tradition that has not ended since then
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, December 28, 2025
IRC logs for Sunday, December 28, 2025
Louis Gerstner Has Died, His Legacy of Mass Layoffs at IBM Hasn't
Hagiographies will follow. They will say he "saved" IBM.
Links 29/12/2025: The Sunday Routine, Limits of Memory, and Gemini Vocabulary
Links for the day
Doxing is Illegal in the UK (Even If You're Based in the US)
Somebody has just added my identity (name, mugshot etc.) to a "hitlist" site of a political nature, pandering to violent people
Misunderstood Weapons of Censorship
It's cruel world out there. One needs to be aware of these shady activities, including "censorship-as-a-service".
Google Confidently Wrong, Nowadays Defaming People Too
I can relate as people did this to me and to my wife
What Happens When Americans Are Out of Office (Away From Work) for a Week? Vista 11 "Share" Falls to Just 10%.
How's that for slow adoption?
2026 Will Have EPO Focus, People Will See What the EPO is Trying to Hide
We certainly hope people will be held accountable
EPO People Power - Part XVII - Drugged, Stoned, and Drunk at the Office During Working Hours (Campinos Friend and Propaganda Chief Has Long Done This)
It's a total disgrace that press all over Europe is still trying to cover this up!
Gemini Links 28/12/2025: Health Ordeals and Discontinued Pedals
Links for the day
Slop About "Linux" Came Only From One Slopfarm This Weekend
Another day has passed with no LLM slop found in our RSS feeds
Links 28/12/2025: 'Digital Detox' and Slop "Backlash Grew Massively in 2025"
Links for the day
Links 28/12/2025: "Mass Quitting Apple" and "Generative AI Industry is Fraudulent, Immoral and Dangerous"
Links for the day
Links 28/12/2025: Fascination, Holidays, and Mormonism
Links for the day
Microsoft's Weapon Against the Reality of XBox (the Console) Dying Seems to be LLM Slop
XBox is dead/dying
Raffles for the Immaterial: Unauthorised Bingo for Red Hat "Vouchers"
This is IBM and some slop images
Andy Farnell on Standing Up Against Technological Oppression
some portions from it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 27, 2025
IRC logs for Saturday, December 27, 2025