Microsoft's two-edged sword in the software patent saga

Summary:Microsoft has a large advantage in its quest to go after and collect royalties from those that it deems necessary as a direct threat. Microsoft has risen up with full force against Android, just after Windows Phone 7 started to appear.

Microsoft has a large advantage in its quest to go after and collect royalties from those that it deems necessary as a direct threat. Microsoft has risen up with full force against Android, just after Windows Phone 7 started to appear. Coincidence? I don't think so. Most recently it was announced that Microsoft had an "agreement" with Samsung, yet another manufacturer of Android devices. This agreement? It's been rumoured that Samsung will need to pay close to $5 to Microsoft for each Android phone manufactured and sold. And so this is one side of the blade that Microsoft is swinging all around. Microsoft is using its vast array of patents to frighten phone manufacturers into paying royalties, in order to avoid being sued. Ingenious? Yes, because there's another side of the blade that didn't occur to me until recently. Samsung, being a manufacturer of Android devices, could manufacture devices for other operating systems as well, including Windows. Why not? If Microsoft is going to charge Samsung a set fee for each Android phone, yet allow Samsung to manufacture and sell Windows phones with no fees, what incentive would there be for Samsung to continue manufacturing Android devices? Not too many at the rate things are going. The only thing keeping Samsung interested in Android is the market demand for devices that run the Android OS. So Microsoft has two sides to their blade, they swing it to either side and they win. And Google? They seem to be defenseless at the moment while vendors of its software are being bullied by Microsoft.

So, unfortunately for consumers, Microsoft is abusing the patent system in order to drastically change the mobile phone market, all in its favour of course. I am hoping that the device manufacturers will stand up to Microsoft, just as Barnes & Noble has regarding their Nook. So far nobody has really tried it in mass numbers, so for now Microsoft seems like it is going to continue down the same path for now, checking off company after company on its long list.

I understand that patents themselves are in place to protect inventors. However in the world of software, patents should not be allowed. Patents are not allowed for mathematical algorithms and they should not be allowed for software either, which some classify as two in the same. The U.S. Supreme Court has a mixed history on trying to define if software should be patentable. The most recent case was Bilski v. Kappos, however it is still not known just how the court views what is eligible and what is not. The other wrench thrown into the mix is that software patents can be filed, without actively being used. I haven't browsed Microsoft's thousands upon thousands of software patents, but I can safely assume that there are patents in that list that are currently not used in some of Microsoft's products, yet it allows Microsoft to pursue with legal action against other companies. One thing is for sure, software patents are creating a huge problem and are tying up courts with bogus claims, that in my opinion should be abolished once and for all. It is quite clear by now, that software patents are actively being abused in order for companies like Microsoft to gain advantages and change markets, when they should be competing instead with actual products that appeal to the consumer. With all of this said, I think quality in software will surely decline because it will no longer be the main focus when placing products into the market.

Comments:

Simon Bisson and Mary Branscombe Sep 30, 2011

Microsoft has been signing cross-patent agreements with people like Toshiba and Fujitsu and Monotype for years; the seven Android-related ones date back to well before the launch of Windows Phone, by the way, but they absolutely reinforce what Microsoft has been claiming all along (that not charging for Android doesn't make it free if it violates patents). The point of patents is that those who register have to disclose their invention - that's the 'patent' bit; large companies like Ricoh and HP have patent librarians whose job is to look at patents covering areas they're creating products in so they can either pay a licence or design their own techniques. Project owners will get a list of patents that might cover the areas they're working in to review. A company as large as Google could easily employ the same technique as every other technology company of its size, but I've never found any patent librarians working there so they seem to have chosen not to, which is an interesting decision to take, in light of the evidence coming out of the Google/Oracle Android/Java trial.... MB