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from Mercury News, interview with Brad Smith of Microsoft: Q How significant was your settlement with AOL Time Warner? A The Time Warner agreement was very important. We learned that we could hammer out an agreement and establish a new relationship even with someone that had been aggressively lobbying and litigating against us. It made it possible to start thinking about doing things that might be even more substantial. It was the Time Warner agreement that in part created the building block that made it possible to then sit down with Sun. Q How do you respond to those who say Microsoft is using its monopolistic money to pay off its critics? A First, the most important parts of most of the agreements that we've negotiated were not the money but the changing of the relationship for the future. (Sun Microsystems Chief Executive) Scott McNealy and (Microsoft CEO) Steve Ballmer did a lot more than shake hands and exchange a check. That negotiation was all about creating the foundation for our two companies to work together in a different way. Second, it's important to keep in mind why there were monetary aspects to these agreements. Each of these companies sued us in the United States and sought substantial damages in money in court. Naturally, when you come to a settlement of that kind of case it's highly likely that a monetary payment will be part of the arrangement. Q Can you talk about why Microsoft thinks patent reform is important? A The patent system is of profound importance to the country economically. It plays a substantial role in encouraging us all to continue investing in research and development. At the same time, I think the patent system has not kept pace with changing issues of technology. We see some weaknesses. . . . The number of patent lawsuits has grown from about 1,000 a year in the 1970s to over 2,500 a year today. I think the law has tilted too heavily in favor of those who hold patents. They're able to sue for treble damages by proving what's called willfulness, which is applied as too low a standard today, in our view. Q So what are you proposing? A Improve the quality of patents in this country . That can be done by ensuring that the Patent and Trademark Office -- PTO, as it's called -- has the resources necessary to really scrutinize patent applications. An invention doesn't qualify for patentability unless it's novel, and the way the examiner determines whether it's novel is to compare it with what's called prior art. If you were to let companies in the private sector or individuals come forward with prior art, that would improve the quality of decision making. And then, third, there's what's called a post-grant opposition procedure. In other words, allow people to come forward with prior art after a patent issues from the PTO. Q How much patent litigation is Microsoft involved with? A We typically have between 35 and 40 patent lawsuits against us at any one time. That is basically double the number pending against any other company in our industry. Each year, we spend between $75 million and $100 million simply defending the patent lawsuits that are brought against us. Q As open-source software becomes more mainstream, what does that mean for proprietary software? How has it changed the strategy of Microsoft? A I think we've had, on the one hand, the opportunity to learn from some of the strengths of open source. We've focused on some community-oriented projects. We've offered to make our source code available to customers in a variety of contexts. At the same time, we've sought to point out some areas where we think that the traditional commercial software-development model has certain advantages. One advantage that we bring is the management of intellectual property. We stand behind our products with our customers. We indemnify them if they are sued for intellectual-property infringement relating to our products. . . . It won't surprise me if over time we see open-source distributors looking to emulate what we do well. buy cilais cheap cialis buy cheap cialis generic viagra online

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Of the apparent disparity between IBM efforts in patent reform and IBM's patent suit against Amazon, InformationWeek has the following quote: IBM's top attorney for intellectual property rights acknowledges his company's position can seem contradictory and confusing. "We've referred to our patent policy as apparent schizophrenia," David Kappos says. Yet he maintains that "on a deeper level, our actions are consistent." [Also -->] Tech vendors, IBM and Microsoft principal among them, are trying to change things they don't like about the patent process. In addition to giving away patents to the open source community, IBM wants all patent applications to be subject to public review. And it's urging Congress to do away with patents--including some of its own--based on so-called business methodologies that lack technical merit. But in suing Amazon, IBM promised to "aggressively defend" its intellectual property and hunt down other companies it thinks are using its IP without permission. IBM says it tried unsuccessfully to negotiate a licensing deal with Amazon for four years before filing suit. Amazon declined to comment. The Information Week article also contains the following: U.S. Patent And Trademark Office Proposes limiting to 10 the number of times patent applicants can request a re-examination of their applications and the number of individual patent claims contained in any single application IPBiz asks: is anyone awake at Information Week? Or have they joined with Science in dispensing pure glop about patent law (see 88 JPTOS 743)? Yes, there is a reference to Lerner: "There are some pathologies in the system that need to be dealt with," Harvard Business School professor Josh Lerner says. "Patents have become too powerful and too easy to get" for an economy that's increasingly information-based, Lerner says. Yes, Information Week does note the dichotomy with IBM: IBM's strategy is to be an IP benefactor to the tech industry when it's in IBM's interest, while staunchly defending its IP rights at other times. That's hardly reassuring to entrepreneurs and startups that risk a run-in with IBM as they develop new products. IBM holds about 40,000 patents worldwide for everything from how to display ads online to the creation of an Internet checkout system. IBM patents cover "most of, if not all, e-commerce," senior VP John Kelly told The Wall Street Journal last week. Yes, there is further confusion about the patent system: What's setting off alarms in some quarters is the fact that personalized recommendation systems are widely used, and they can be generated in a number of different ways. "These kind of lawsuits hurt our whole industry," says Mary Hodder, CEO of Dabble.com, an online video-sharing service. She thinks the patent process needs tightening to prevent what she considers a proliferation of nuisance suits. "Most of the patents they grant are really for simple and basic concepts and ideas, not complex and innovative processes, which is what they're supposed to be allowing ," Hodder says. Yes, there is mention of Rivette: Last year, IBM hired Boston Consulting Group patent expert Kevin Rivette as VP for intellectual property. Rivette is author of Rembrandts In The Attic (Harvard Business School Press, 1999), a primer on how companies can profit from their IP assets. Palmisano created a technology and intellectual property unit within IBM under senior VP Kelly, dedicated to finding new markets for the fruits of its research. There is discussion of the Peer-to-patent project: Other critics suggest the vendors' moves are aimed at cementing their advantages at a time when they face rising competition from startups. In an August essay, Harvard Law School professor and tech entrepreneur James Moore argued that the collaborative patent review process proposed by IBM, Microsoft, and others will result in fewer patents being issued because it will give examiners more ammunition to shoot down applications. "If fewer patents are issued, but existing patents are not revoked, IBM and Microsoft win because they already possess vast existing portfolios," Moore writes. IPBiz notes: It is already true that fewer patents are being issued. Further, the re-examination process is still around. ** See also http://ipbiz.blogspot.com/2006/10/ibm-goes-after-amazon-nyt-mentions.html cialis buy cheap cialis viagra buy cilais

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