USPTO and Microsoft’s patent FUD: an incentives-based solution

As Linux Weekly News reports, Microsoft’s general counsel has intensified the company’s sabre-rattling against Open Source projects, this time putting numbers on the alleged patent infringements in the Linux kernel, desktop projects and Open Office.

Conveniently left out is the one-sidedness of this smear campaign. Microsoft could take all their time to look at open-sourced code, but on the other hand, Microsoft’s code is sacrosanct. One wonders if Microsoft’s “Shared Source” licenses and EULAs allows the licensee to sue Microsoft for patent violation? One would suspect otherwise.

The patent system is broken. And it’s a matter of incentives. As I wrote in response, the US Patent and Trademark Office grants overly-broad patents without checking carefully for prior art. Thus Microsoft’s claim is probably true in a very twisted way: nobody can write anything meaningful without violating some patent that one of the big tech companies (IBM, Sun, Microsoft, etc.) holds. Any company with a legal team worth their salt would play the system and file for as many patents as they can, no matter how dubious. Some even boast about it (Steve Jobs, about Apple’s iPhone). The culprit is thus the patent system, not the owners of the dubious patents (who are ethically responsible to their shareholders only. Corporate law is also very flawed, but that’s the subject of another post), and certainly not the authors of the infringing software.

Regardless of whether software patents is a good idea or not (I personally think it’s not), the USPTO and Congress have a serious conflict-of-interest problem here. Granting more patents earn them more money, and examining patent applications carefully cost them money. Plus, they don’t lose anything for patents that are overturned. The Justice department should charge USPTO for the time wasted by patent challenges, if the patent ends up overturned because of USPTO’s fault. That way they’d have an incentive to be more careful.

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