Feeds

Microsoft legal beagle calls for patent reform cooperation

'Fix what's broken, don't break what's working'

Securing Web Applications Made Simple and Scalable

Microsoft has urged government, the courts, and industry to work together to help improve the US patent system, but also cautioned against breaking those aspects of the system that do work.

"There is no question that the U.S. patent system has tremendous strengths but also significant weaknesses," Microsoft executive VP and general counsel Brad Smith said in a blog post on Thursday.

Among the chief weaknesses Smith cited were abuse of standards-essential patents, lack of transparency into who owns patents, and inadequate patent review processes at the US Patent and Trademark Office (USPTO) leading to overboard patents and frivolous litigation.

Smith said that Redmond has already taken several steps to improve how it handles its own patents. For example, in February 2012 Microsoft pledged never to seek injunctions to prevent companies from licensing Microsoft patents that are considered essential to industry standards – something Microsoft has accused Google-owned Motorola Mobility of doing in the past – and Smith urged other companies in the industry to do the same.

In December 2012 the US Federal Trade Commission (FTC) issued its own opinion criticizing Motorola's practices, and in January 2013 it announced it had reached an agreement with Google in which the search advertising giant agreed to license its subsidiary's mobile technology patents on "fair, reasonable, and non-discriminatory" (FRAND) terms. Microsoft says it already offers FRAND terms for its own standards-essential patents.

Smith also said that the practice of concealing who actually owns patents leads to "opportunistic behavior and gamesmanship," and that Microsoft plans to make information explaining exactly which patents it owns available to anyone on the web by April 1, 2013.

Furthermore, Smith called for legislators to institute a "loser pays" system for patent litigation, in which the losing party is required to foot the cost of the winner's legal fees. Although many countries have adopted such a system for civil suits, such terms are still rare in US courts.

Smith said that making the loser pick up the legal bills would "force companies to internalize the strength of their case beforehand" – a rather lawyerly way of saying it would make companies think twice before bringing frivolous patent suits.

Finally, Smith called for the lawmakers to give USPTO patent examiners better access to information about prior art and more time to evaluate patent applications, to help weed out overbroad patents. He also said patent applicants should be required to use standard language wherever possible and to clearly define nonstandard terms where they were used.

What Smith does not want, on the other hand, is for the current patent system to be dismantled, or even for any current categories of patents – such as software patents – to be rescinded.

Smith said Microsoft is even in favor of companies that hold patents but do not actually create products based on the patented inventions, a practice which he described as "an engine of innovation."

"Iconic inventors such as Thomas Edison and Nikola Tesla engaged in the sale and licensing of inventions they created but did not practice themselves, and today's individual inventors and start-ups stand in their shoes," Smith wrote.

But then, he would say that. Also on Thursday, Microsoft announced that Nikon had become the latest company to license Redmond-owned patents related to technologies found in Nikon cameras running Google's Android mobile OS. Microsoft itself markets no devices based on Android. And as for transparency, Microsoft did not disclose any details of the agreement – not even which patents Nokia actually licensed. ®

The smart choice: opportunity from uncertainty

More from The Register

next story
Yorkshire cops fail to grasp principle behind BT Fon Wi-Fi network
'Prevent people that are passing by to hook up to your network', pleads plod
UK government officially adopts Open Document Format
Microsoft insurgency fails, earns snarky remark from UK digital services head
Major problems beset UK ISP filth filters: But it's OK, nobody uses them
It's almost as though pr0n was actually rather popular
HP, Microsoft prove it again: Big Business doesn't create jobs
SMEs get lip service - what they need is dinner at the Club
ITC: Seagate and LSI can infringe Realtek patents because Realtek isn't in the US
Land of the (get off scot) free, when it's a foreign owner
MPs wave through Blighty's 'EMERGENCY' surveillance laws
Only 49 politcos voted against DRIP bill
Help yourself to anyone's photos FOR FREE, suggests UK.gov
Copyright law reforms will keep m'learned friends busy
prev story

Whitepapers

Designing a Defense for Mobile Applications
Learn about the various considerations for defending mobile applications - from the application architecture itself to the myriad testing technologies.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Reducing security risks from open source software
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Consolidation: the foundation for IT and business transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.