I'm not even sure I understand what's happening here. Are they offering to rent their patents to you to use in defending yourself against patent suits? What?
1. They promise that if you get sued for using something open source that Azure is built on, they will indemnify you. Eg, with AWS, in theory someone could say to you: "We have a patent on DB replication, you use MySQL with RDS, that has replication, you owe us money." Unsure if that's a valid risk, but maybe.
2. If you get sued and you've been paying $1k a month or more to Azure, MS will give you one of a their 10k patents on a list if it'll help mount a defense. Could be helpful, I suppose, but hard to figure out the value. If I'm sued, AND MS has a relevant patent on the list, how useful would it be?
3. MS promises that IF they transfer some of their patents to a patent troll in the future, the terms of the transfer will prevent the troll going after you. Again, hard to quantify the value, especially since it depends on MS's actions. "We have a big hammer, but we promise not to hit you" is only partially reassuring. But still better than no promise at all!
On balance these all seem like unmitigated goods, although it's hard for me to evaluate if they have any value. It never occurred to me to be concerned that I might be sued for using open source tools on AWS. :)
I'd estimate it to be about 80% marketing, and 20% a good faith attempt at defusing the disaster that is modern IP laws.
(Edit: And contrary to some other commenters, I don't see anything malicious or harmful going on here.)
Countersuing is probably the #2 most common response to a patent suit (after settling). It's so common that there's a name for it: "defensive patent strategy." Basically, you file a bunch of patents, but you don't proactively go out and look for infringers. You're just hanging on to them in case you get sued. If you get sued you go and look at the person who's suing you and try to find one of your patents they're violating. This actually works fairly well because the patent system is so broken, and patents are so easy to get, that you can almost definitely find a violation given a reasonably large portfolio (and 10,000 patents is reasonably large).
Unfortunately, countersuing doesn't work against NPEs... and NPEs are usually the ones doing the suing.
You are part of the problem. NEVER settle with a patent troll. I've had plenty of these assholes come after me and nothing ever stuck, on top of that I've helped others defend against the trolls with a 100% success rate when and if they stuck to the end.
Yes, it can cost you money, but this real life prisoners dilemma can only be won if we stick together. And MS is playing both ends against the middle here, to their own advantage of course.
The first two times the decision was made above my head.
The third time I was in the C-suite and it was a joint decision. I had a heart-to-heart with our lawyers because I _did not_ want to settle. Our head IP lawyer said he felt me -- he thought the suit was bullshit, would love to fight, etc -- and if we decided to defend he'd be 100% with us. However, his firm was currently engaged in defending another suit with the litigant and it had been appealed through the circuit court in Texas. At that time it was pending hearing by the Supreme Court. That client had already accumulated more than $250,000 in legal fees and there was no guarantee that they'd win. Even if they did win, it was unlikely that they'd be able to recover any of those fees. He estimated total cost of fighting would be between $250,000 and $500,000.
I reached out to friends at large tech companies to see if they had experience dealing with the litigant. I heard back from two of them that they did have experience, and that they settled. Since there was an ongoing case involving the litigant that was already heading to the Supreme Court (and one that had at least as good a chance of winning) we opted _not_ to spend a significant amount of our venture capital fighting an expensive battle that, at best, would cost us hundreds of thousands of dollars and, at worst, we would lose in Texas.
In the end we spent significantly more money on investigating a defense then we actually paid in settlement.
If you're interested in covering the financial costs associated with fighting these suits please let me know. I would definitely take you up on that and fight all day every day.
> If you're interested in covering the financial costs associated with fighting these suits please let me know.
I'm well aware of that, there were years when I paid more to the lawyers than to the tech department. Still, overall it was worth it. Big factor in our survival was that we had an EU parent company rather than one on the far side of the Atlantic.
Even so, I refuse to be extorted.
The world isn't fair.
I don't think that should be vilified.
100% success rate when and if they stuck to the end
Except your "success rate" doesn't include things you can't get back, like time and effort which is crucial for a startup - even in the unlikely case that you get your attorney's fees back.
That I'll readily agree with. Still, I absolutely believe that settling with these jerks is making the problem much worse.
> It never occurred to me to be concerned that I might be sued for using open source tools on AWS.
Well there you go -- you've answered your own question: Yes, it has value, if for no other reason than it got you thinking that using AWS might just be risky.
I'm not saying that is incorrect, or even that this new Azure "feature" is nesicerily a bad thing -- just pointing out the PR aspect.
I'm also refraining from labelling it as FUD, even though it does indeed sow fear, uncertainty, and doubt, since I think FUD should be reserved for false or misleading fear, uncertainty, and doubt.
If you are sued by a troll or some other sort of non-practicing entity, that is worth zip. You can't defensively assert against them since they don't do anything.
If you are sued by a real company, it could help bring down settlement costs. Hard to value that, but it's worth something.
Say you build a product, maybe VR goggles, and you legitimately infringe someone else's VR patent, because that's pretty much unavoidable these days. The owner of that patent is in the same VR space, and decides that you're a threat to their business, so they decide to file suit on this patent you've infringed and make your life difficult.
But! You've been developing your own defensive patent portfolio around VR, because that's the business you're in. In this case, it's common to find that your competitors are also infringing some of your patents, because you're all working on the same thing. When this happens, it's easy to cross-license -- I'll let you use some of my patents if you let me use some of your patents. Patent problem avoided.
This is Microsoft allowing you to use part of their patent portfolio for defense in this way.