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Comment by sriramk | Hacker News Reader

Disclaimer: ex-MSFT, have several patents pending from during my time there.

His blog post reminds me why I get so mad at Microsoft using patents against Android OEMs. During all my years at MSFT, employees were always told that patents were necessary for the reasons Paul Vick stated - you had people like Eolas and zillions of other trolls trying to get you and you needed a portfolio to play defence.

With the Android issue, that changed. MSFT suddenly started using patents offensively as a strategic tool. While I totally get why this is smart ( and I'm stunned at how effective it has been), I feel they violated an implicit social contract with a lot of people who worked to get them those patents.

It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence.

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> During all my years at MSFT, employees were always told that patents were necessary for the reasons Paul Vick stated - you had people like Eolas and zillions of other trolls trying to get you and you needed a portfolio to play defence.

No, that can't be right. I hope you're just misremembering that, but the whole problem with patent trolls is that you can't use your own portfolio for defense.

A large patent portfolio is a good weapon against other giants in your industry: IBM, Apple, Oracle, Google, (and once upon a time) Sun. Those people basically can't sue you for violating one of their patents if you have several thousand of your own: they're bound to be in violation of at least one of yours, and it's a mutually-assured-destruction scenario.

A patent troll, on the other hand, doesn't do anything. They can sue you with relative impunity, since there's almost no chance that they're doing anything that you can use against them. The size of your own patent portfolio doesn't even enter the picture.

There's two ways you can use patents for defense:

1) patent it before the other guy does, so the troll has nothing to sue you with, and

2) patent everything and hope that one of your patents overlaps with the troll's.

There is another strategy - just publish your invention for all to see rendering it un-patentable.

IBM of all people used to do this for ideas they did not think were worth patenting. By publishing them they stopped anyone else from getting a patent on those ideas. IBM published a magazine for 40 years that is a treasure trove of prior art: http://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bullet...

Now anyone can do defensive publication on this site

http://priorartdatabase.com/

http://en.wikipedia.org/wiki/Defensive_publication

I used this strategy with some GPS cell phone ideas I had in 2003 and I "published" them myself

http://web.archive.org/web/20031211124028/http://www.gadgete...

Unfortunately, that (rather noble) act is untenable in a world where everyone's suing everyone in the big boy department. If Apple and Microsoft weren't trying to kill Android with lawsuits, I could see a gentleman's agreement between the lot of them making this a fairly effective strategy. With the current state of affairs, everyone needs all the linked list patents they can get.

I see it less as being noble and more of a practical strategy for a small business. You can't afford to apply for a patent on everything you think up so why not publish it so at least you will not be locked out of using your own idea by someone who comes along later and does apply for a patent.

"It's going to be interesting to see whether Google does the same swerve down the line and not just stick to using patents in defence."

Google is already swerving. They're interested in utilizing the Moto patent portfolio to implement 2.25% of total device cost fees on FRAND patents.

In fact, they're already moving forward with that against Apple, which would net them (based on Q42011 sales) over $500,000,000 a quarter, or in the $1.5-2.0B per year on the iPhone alone.

It's no wonder Google is moving forward: That's likely as much or more money than they make on their own Android OS!

Apple and Motorola is suing each other. The 2.25% claim against Apple is from Motorola. Google has stated that they do not intend to drop it. Even if Google were unselfish angels, dropping their claim without getting a cross license agreement first would be plain silly.

Doesn't matter. Google signed off on it, Google supports it. Don't try to let Google dodge the bullet.

When presented with a portfolio of patents, Google behaved not like it has spent years telling everyone they should behave, but instead exactly like they have long since fought against.

"...I feel they violated an implicit social contract..."

Violated what? LOL...Patents are for protecting you from infringement, so you retort/attack when you're patents are abused...What the hell is Apple doing when Samsung/Google got "inspiration" from the iPhone?

MS is built on selling Software and protecting it is their responsibility to their Shareholders!

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