Feb 212013

As much as I bust on Microsoft for being a decomposing leviathan whose best days are far, far behind it, there are some things on which we mostly agree. We agree that developing your own mobile device UI is better than ripping off someone else’s wholesale. We agree that Google’s beneficence is at best a front that belies a plain-English explanation of what they do with your personal information. One thing on which I never thought I’d share a viewpoint with Microsoft is patent law. I don’t agree with all of it and I’m not a huge fan of the motivation behind their posture, but on the big issues, Redmond and I line up pretty well. Allow me a paragraph break while I retch the last one out.

There was a post today highlighting Microsoft’s vision for patent reform “The Patent System: Fix What’s Broken, Don’t Break What’s Working” that appeared in their Microsoft on the Issues blog (which oddly is not under the microsoft.com domain), penned by General Counsel & Executive Vice President, Legal & Corporate Affairs, Brad Smith (side note: you can see how organic the left-handed product naming in Redmond is just by looking through their Executive Team’s titles). His suggestions are good, if not somewhat obvious and self-serving (count the number of times you see a derivative of the word “licensing”). I’m going to run down the list and offer my thoroughly unqualified take.


If you own a patent, everyone should know you own it. As simple as that sounds, it would change the way people view litigious twats like Intellectual Ventures’ Nathan Myhrvold, who, ironically enough, is Microsoft’s former CTO. Instead of skulking around the courts extorting real innovators under what is estimated to be thousands of shell companies, Myhrvold would have to stick his name on every patent. Let people see all the high-quality IP your company is using to threaten others while abusing the patent system and upper-decking the courts in this country. See how many D10 Conferences he appears at without that anti-malaria/tsunami/cancer ray cannon he’s been yapping about under his arm, knowing that Uncle Walt is armed with every piece of used toilet paper that made it through the USPTO. It would certainly make his next cookbook signing a lot more interesting.

Standards-Essential Patents

License FRAND patents under reasonable terms. Don’t use them for injunctions. One of the least beaten drums in tech is how Google is trying to do this exact thing. So is Samsung, but Samsung is a company that was built on the moral equivalent of a dungheap. Google is supposed to be about “free and open”, yet they’re attempting to use the most abuse-resistant form of patent as a cudgel BUT LOOK OVER THERE AT THEIR CHEAP FIBER OPTIC NETWORK!

Loser Pays

Entities that exist only to file lawsuits without making shit should have a downside to their business model. You lose, you pay. The only people who lose under this scenario are the trolls and the East Texas economy. A little on the aggressive side, but I don’t think it’s aggressive enough. I think “Filer Posts, Loser Pays” is a better model. Let’s start the bidding at $1 million per claim. You win, you get your bond refunded, paid for by the loser – in addition to the damages awarded. A million per claim is chump change to big tech, but it would serves as a barrier to frivolous claims. Also: all (or the vast majority) of the money gets plowed into that specific case. Some suggestions:

  • Administrative support. If I had a dime for every time I heard Lucy Koh bitch about her calendar over the course of the Apple-Samsung trial, I’d be halfway to Apple’s jury award. Think of all the paralegals a million dollars could buy. Hell, you could assign multiple judges to a single case. You may actually hear a noise from the wheels of justice in this country that didn’t sound like a whimper.
  • Pay the fucking jurors. What is wrong with a country where the people least likely to facilitate a fair and expedient trial are the most likely to be picked? I was forced to do Grand Jury duty a day every week for 6 months last year. I got $50 at the end of it. Make it worth the time and effort that people have to put into jury duty. Give them good food and put them up in a 3 star hotel. Pay them at least what they’d earn during the day – pay them double! Have them volunteer. Have the jury pool be determined by lottery with people picked from a population of pre-qualified candidates – people with a decent familiarity with the laws, the technical terms and the claims. You want good verdicts? Invest in good juries.

Do you think Tim Cook would balk for a second at the prospect of having his day in court before the machines become self-aware if it only cost Apple a million per claim? Shithouse Technologies, Inc. maybe, but not the people with the real axes to grind. Let the companies who stand to win or lose the most fund the war.

Improved Patent Quality

Tie patent scopes to things that are actually invented. Do a more thorough prior art exam when the patents are filed. Another great use of this litigation filing windfall: make the USPTO into something that isn’t the governmental equivalent of a human appendix. And we’re talking about government here, so that’s saying something.

TMA’s Suggestions

In addition to the specifically-impractical-but-spiritually-correct suggestions above, how about:

  • A limit on counterclaims. No more of this trawling-the-sock-drawer counterclaim bullshit. If Apple puts up their million per to take Samsung to the woodshed, Samsung doesn’t get to file a bazillion counterclaims that has nothing to do with the patents alleged. You feel that passionately about those claims? File a separate suit – at a million per claim. And if there’s a company on the planet that has infringed or is infringing on those patents now, fuck off: you just forfeited your right to use them – ever. How much time was wasted on Apple-Samsung by Koh begging the parties to winnow their claims?
  • Jury award = money in the bank. How much of that $1.049 billion that a jury awarded Apple a half a year ago has been paid to the company? If you guessed “jack shit”, big gold star for you. Appeal it till the cows come home. Knock yourself out. But when the judge reads that piece of paper with the dollar signs on it, BOOM: wire transfer. If an appeal renders it moot, reconcile it down the road. If you want patents to serve as any kind of financial disincentive for infringers, show the winners the money.

So there’s my thoughts on Brad Smith’s thoughts. Between him and Frank X. Shaw, I’m starting to warm up to those Redmond folks. But as a great Gunnery Sergeant once said “Just because we’re holding hands doesn’t mean we’ll be taking warm showers together until the wee hours of the morning.”

 Posted by at 11:28 pm
  • RSS
  • Twitter