I had a conversation with Bill Hilf not long ago. We were talking about the Microsoft-Novell deal, but the conversation ended much more broadly, discussing the US patent system. It’s the same conversation I’ve had with Jason Matusow, and a range of others both inside and outside of Microsoft.
The conversation goes like this: we don’t like the patent system, but we’re forced to work within it. That means both licensing patents (to and from others). It means occasional sabre rattling (when you think someone is infringing your patents). And it means (very) occasionl patent suits. (Microsoft, for its part, has almost never actually ligitigated its patent portfolio, to its credit).
Funny enough, these were the same sorts of things I spent my Masters degree working on. The degree was in International Conflict Analysis, which basically boils down to, “It’s a cruddy world, but we have to make do.”
I’m not naive. I don’t think Microsoft can afford to lay down its patent portfolio and hug and kiss everyone. Others certainly don’t seem to be willing to do the same for Microsoft.
I do wonder, however, if there’s a better way to leverage it; one that doesn’t require the occasional FUD bomb.
Part of the GPL’s genius is that it allows you to have a copyright and exercise control with it, but transparent (and, I would argue, benevolent) control. You grant rights, but you don’t give up any in the process. I wonder if there’s a way for Microsoft (and others) to make their patents available in such a way that they can be used, but not easily used against the holder. I haven’t thought this through (just thinking out loud here), but it seems like this is the sort of aggressive move that would speak well to Microsoft’s competitive inclination, without making it prey to others who opted to horde their own patent portfolios.
Again, just thinking out loud. I suggest this for Microsoft because for all the grief I give the company, Microsoft has generally been an innocuous holder of intellectual property, whatever its other faults. The company has rarely sued anyone. It has a comparatively anemic licensing business from its patents. Etc.
So maybe Microsoft could afford to take a “patent-left” approach to its patents. Or maybe it’s late and someone left the gas on…. :-)