Microsoft To US Gov't: Hey, Only We Should Be Able To Use Patents To Shakedown Other Companies!

from the ain't-that-always-the-way dept

Wed, Jun 15th 2011 6:22am — Mike Masnick

When former telecom giant Nortel was reduced to just a pile of questionable patents, we knew there would be a fight over who got them. Google made a lot of news a couple months back, by placing a $900 million stalking horse bid on those patents. The company has made it pretty clear that it's mainly looking to buy those patents to keep them out of the hands of someone else who might shake down innovation in the mobile ecosystem. Obviously, Google would prefer that the Android ecosystem not be slowed down by patent trolling.

However, there is one company that's quite worried about all of this: Microsoft. Even though it's not clear who will win the bid for Nortel's patents (and many expect Google to be outbid), Microsoft has officially objected to Google's attempt to buy the patents, saying that it has a perpetual royalty-free license to those patents, and under the terms of the sale, any buyer could end that deal.

And here's why Microsoft is a steaming pile of hypocrisy on this subject: Microsoft has ramped up its own anti-Android patent trolling efforts, lately. It's been demanding licensing fees and/or suing all sorts of companies who use Android. In fact, some reports suggest that thanks to all this effort, Microsoft makes significantly more money from Android phones than from its own mobile platforms. Clearly, shaking down others with patents is good money.

And Microsoft doesn't think it's fair that someone else could do the same thing to it:

For Microsoft to complain is pretty rich, of course. Here it is, using patents to attack companies employing Android in an attempt to slow down the uptake of that rival to its own Windows Phone smartphone system. That's a clear abuse of the patent system to dissuade companies from signing up with a competitor (which, interestingly, it doesn't attack directly), rather than to protect real innovation (an aim that was thrown out of the patent system long ago.)

After all, those deeply innovative ideas that Microsoft is claiming that companies are infringing include �natural ways of interacting with devices by tabbing through various screens to find the information they need, surfing the Web more quickly, and interacting with documents and e-books�. Tabbed screens - yeah, right.

And yet when there is the prospect that Google might be able to threaten in exactly the same way, by pulling existing licences - not, admittedly, a very nice thing to do, but all's fair etc. etc. - Microsoft suddenly wants the government to intervene to protect it from this bullying.

I mean, let's be consistent here: if you want to abuse the patent system, expect to be on the receiving end of similar abuse. On the other hand, rather more laudably, why not stop abusing, in which case you can take the moral high ground when others start abusing the system to attack you?

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Filed Under: mobile, patents, telecom
Companies: google, microsoft, nortel

29 Comments

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The eejit (profile), 15 Jun 2011 @ 5:35am

Cue that "it's all Google's fault because Google is EVUL!!!!" in 5, 4, 3....
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Raphael (profile), 15 Jun 2011 @ 6:48am

Complaining to who?
Can someone clarify what part of the U.S. government Microsoft is complaining to? Is it a bankruptcy court? a regulator? I think that piece of information is useful to my understanding of this situation.
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The Infamous Joe (profile), 15 Jun 2011 @ 6:51am

Promote the regress of science.
The company has made it pretty clear that it's mainly looking to buy those patents to keep them out of the hands of someone else who might shake down innovation in the mobile ecosystem.

Just like our forefathers intended, by golly!
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The Infamous Joe (profile), 15 Jun 2011 @ 6:53am

Re: Complaining to who?
FTA: Microsoft, which claims a "worldwide, perpetual, royalty-free license to all of Nortel's patents" following a 2006 deal, said in a filing with a Delaware bankruptcy court that existing agreements should be transferred to any new owner of the intellectual property, which spans many fields. (emphasis mine)
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Raphael (profile), 15 Jun 2011 @ 7:00am

Re: Re: Complaining to who?
Right. sorry!
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Raphael (profile), 15 Jun 2011 @ 7:05am

Re: Re: Re: Complaining to who?
So can someone explain what the bankruptcy court's role is here? I don't understand why it would consider an objection like that. Is it part of its job to worry about industry competition? Is there something related to the agreements Nortel entered into that the bankruptcy court is supposed to consider?
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senshikaze (profile), 15 Jun 2011 @ 7:30am

Re:
... 2... 1...

Google is teh EVUL!!!1!!!11!!
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Old Fool (profile), 15 Jun 2011 @ 7:41am

Hilarious
Suggesting Microsoft take the 'moral high ground' after it has risen to its current position by screwing over all budding competitors gave me the best laugh I've had all week.
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Brett, 15 Jun 2011 @ 8:06am

Re: Re: Re: Re: Complaining to who?
When Nortel when bankrupt, apparently Microsoft was a creditor and was granted perpetual license to Nortel's patents where they had agreements. They argue that Google's purchase could interfere with the rulings of said bankruptcy court.
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PRMan, 15 Jun 2011 @ 8:56am

The moral high ground
Google should buy the patent, call Microsoft, and tell them they are canceling the license unless Microsoft stops collecting royalties for not selling Android.
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jcar2 (profile), 15 Jun 2011 @ 9:15am

Microsoft's "moral ground" is really a swamp
Google has no history of using software patents aggressively. None.

Microsoft, on the other hand, has a HUGE history of either suing, or paying others to sue, or investing in patent troll companies - owned by former MS execs - for purposes of suing.

Does anyone think Microsoft bought Skype for any reason other than patents?

Then there's Nokia, being raped and pillaged by Microsoft's lapdog, Elop. And when Nokia is truly on its last leg, who do you think will try to get all those lovely Nokia patents? I'm thinkin' it'll be the company responsible for the pillaging.

Or how about Novell? Similar story, same sad type of ending.

Microsoft, it's the mobster of the tech world...
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Anonymous Coward, 15 Jun 2011 @ 9:59am

How is this hypocrisy?

As I understand it, Microsoft isn't saying "nobody should be able to use patents against us." It's saying "nobody should be able to use patents against us when we already paid good money for a perpetual license under those patents."

Have they ever taken the opposite position?

If not, I don't see the hypocrisy.
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The eejit (profile), 15 Jun 2011 @ 11:43am

Re:
They have. Against Apple, IBM and Commodore, back in the Windows 3.0 era.
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Anonymous Coward, 15 Jun 2011 @ 12:39pm

Re: Re:
How did that situation come about? Who did those people pay for a license, and how did Microsoft get in the position to argue that they could sue them despite the license?

Link?
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Derek Kerton (profile), 15 Jun 2011 @ 1:40pm

Re: Microsoft's "moral ground" is really a swamp
"Does anyone think Microsoft bought Skype for any reason other than patents?"

Yes. Most informed analysts think, instead, that MSFT bought Skype for two main reasons:

1) To gain access to the very large number of registered users and active users in the Skype ecosystem.

2) To remain/gain relevancy in the communications space, the IM space, the collaboration space, and the video chat space, by integrating Skype into their mobile phones and desktop offerings.

Not everything is only about IP. In this case, IP is a minor detail.
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Rekrul, 15 Jun 2011 @ 4:07pm

Re: Re: Microsoft's "moral ground" is really a swamp
Yes. Most informed analysts think, instead, that MSFT bought Skype for two main reasons:

1) To gain access to the very large number of registered users and active users in the Skype ecosystem.

2) To remain/gain relevancy in the communications space, the IM space, the collaboration space, and the video chat space, by integrating Skype into their mobile phones and desktop offerings.

And what do you want to bet that the next major version of the Windows version of Skype will only work on Windows 7? Shortly afterward, they'll change the protocal so that older version can no longer connect. I also wouldn't put it past them to see that the Mac and Linux versions lag behind, or even get dropped completely.

Think this is far-fetched? How are XP users enjoying Halo 2? How's the Mac version?
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Derek Kerton (profile), 15 Jun 2011 @ 4:42pm

Re: Re: Re: Microsoft's
Far fetched? No, but it is a completely different argument than jcar2 made. And I do think you are partly wrong.

I agree that MSFT may make versions of Skype that are released first on their own platforms, or which boast enhanced features exclusive to their own platforms. MSFT already does this on apps like Office, and Skype already does it too. Skype also has made priority deals with Verizon to work better on Verizon phones than other carriers. Both have a history of playing favorites.

However, on your theory that MSFT will make Skype non-interoperable with itself, I'd happily bet $500 that they won't. They are trying to pull users into their ecosystem...not shut them out.
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Lawrence D'Oliveiro, 15 Jun 2011 @ 5:37pm

Re: How is this hypocrisy?
So, should the owner of the Intellectual Property be able to do with their own Property as they see fit, or not?
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Anonymess, 15 Jun 2011 @ 6:58pm

XP/Halo2
"Think this is far-fetched? How are XP users enjoying Halo 2?"

Thankfully, not. Halo was the stupidest FPS or whatever they labeled it I wasted my money on in a long time.
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Paul Keating, 16 Jun 2011 @ 3:19am

a bad thing?
Perhaps it is a good thing that MS is finally protesting. Wars generally end with the aggressor realizes they might be losing ground. Maybe this is just the spark that is needed to have patent reform really considered.
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DannyB (profile), 16 Jun 2011 @ 6:53am

Re:
If Microsoft already paid a license for a perpetual license, then it has NOTHING to worry about.

That done deal is a done deal. Google cannot undo it.
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Anonymous Coward, 16 Jun 2011 @ 10:37am

Re: Re: How is this hypocrisy?
Their property is a series of exclusive rights. If they've agreed to not exclude someone from excercising some of those rights, then they no longer have the right to exclude such exercise.

I guess the short answer is "no," but it's based on a potential misunderstanding of what the "property" is.
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Anonymous Coward, 16 Jun 2011 @ 10:38am

Re: Re:
I'm not really knowledgeable about the facts here, but the article made it sound like Google was asking for an order that *would* undo the preexisting license.

In that case, I can understand why Microsoft is upset.
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Rekrul, 17 Jun 2011 @ 10:31am

Re: Re: Re: Re: Microsoft's
However, on your theory that MSFT will make Skype non-interoperable with itself, I'd happily bet $500 that they won't. They are trying to pull users into their ecosystem...not shut them out.

Yes, but you're under-estimating their obsession with pushing everyone toward the latest version of Windows. They probably won't change the protocol completely, what they will probably do is roll out new versions for all platforms with some new feature that requires you to be using the latest version. One day, people using Skype under XP will try to make a call and get a message telling them that they need to upgrade to version 6.0.1.8734, which will only work on Windows 7.

Already, DirectX10 and IE9 will only work under Vista or W7. You think MS is going to be happy letting people continue to use Skype under XP?
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Rekrul, 17 Jun 2011 @ 10:33am

Re: XP/Halo2
Thankfully, not. Halo was the stupidest FPS or whatever they labeled it I wasted my money on in a long time.

I actually enjoyed Halo, although I do agree with the general consensus that the level designs needed more variety.
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Derek Kerton (profile), 17 Jun 2011 @ 3:50pm

Re: Re: Re: Re: Re: Microsoft's
So your beef with MSFT is: some of the latest features, which rely on the latest OS and hardware, are not available on prior OS versions or hardware.

OK, then you're right about that.
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Rekrul, 17 Jun 2011 @ 9:37pm

Re: Re: Re: Re: Re: Re: Microsoft's
So your beef with MSFT is: some of the latest features, which rely on the latest OS and hardware, are not available on prior OS versions or hardware.

Just because a company says that a program "requires" a particular version of Windows doesn't mean that it actually relies on, or even makes use of the new features of that OS. Often, the only reason it "requires" the latest version of Windows is that MS changed some little aspect of how a program calls an important function, so that it fails on previous versions of Windows, even if they provide the exact same functions. MS knows it will break backward compatibility, which is exactly why they do it.

Here's a perfect example;

Write a program that is fully Windows 98 compatible and compile with it Microsoft Visual Studio 2008 and the resulting code won't work under 98. There's not even an option to compile for older versions of Windows, so if you're using MVS2008, you can't support older systems even if you want to. However, you can take the exact same code and compile it with MVS2005 and it works just fine. The C64 emulator CCS64 is one example of this. The author had to include two different EXE files compiled with two different versions of MVS to keep it compatible with older systems.

While I can't fault MS for producing a program that produces code optimized for the latest versions of Windows (although some claim that the same code compiled in older versions runs more efficiently), you can't honestly expect me to believe that it would have been too hard or too expensive for MS to include the compiler routines from the 2005 version as an option in a package that sells for anywhere from $110-700.

They just didn't want anyone producing code that ran on older systems. Already IE9 "requires" Vista or better and IE10 will only work on W7. Funny how the latest versions of Firefox continue to work just fine under XP. Gee, I wonder what important features they're missing out on by not "requiring" Windows 7...
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iBelieve, 19 Jun 2011 @ 1:46pm

Re: Hilarious
Am I mistaken or did Microsoft put all the back doors into their Operating systems and into our personal computers for the government from the very beginning? Doesn't that constitute a priveledged position as far as telling the government what it wants to do this week?
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patent litigation, 20 Jun 2011 @ 4:30pm

To those who might accuse Microsoft of patent trolling, I offer this: They have everything to gain and relatively little to lose by filing patent enforcement actions. You can't really blame Microsoft for taking advantage of weaknesses in the legal system.
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