On precisely the same that day that Google unveiled its open source pledge, donating ten patents for free open source use, Microsoft unveiled its new Patent Tracker, a tool to reveal every single patent that the company owns, has acquired, or owned historically.
Do you believe in coincidences?
The genesis of Microsoft’s patent tracker is the company’s desire to improve the patent system without completely destroying it, a Microsoft lawyer that I spoke to today told me. Three problems the company sees in the current system are knowing who actually owns or controls a patent, litigation abuse by non-practicing entities (lawyerese for patent trolls who don’t actually make anything with the patents they control), and poor patent quality.
The new tracker is designed to fix the first problem, while making patent abuse more difficult. And it’s built around Microsoft’s goal of working within the patent system, while seeking to improve it. As Microsoft’s general counsel Brad Smith said, roughly translated: “Fix what’s broken, not break what’s working.”
The two initiatives show a different approach to patents, at least on the surface, from the two software giants.
Google’s initiative today showcases a kind of patents-are-a-necessary-evil mentality. Google doesn’t want to be left defenseless in a patent nuclear war, so it has loaded up on patents by acquiring Motorola, by buying them from IBM, and by joining a consortium to purchase them from a bankrupt Kodak. But it also wants to be seen as a friend of open systems and open software — after all, Android is built on an open-source foundation — so donating patents to open source is kind of motherhood and apple pie.
But it’s also a pretty easy step: ten patents on fairly obscure data analysis technologies are not going to make many in the patent industry think that Christmas has arrived early.
Microsoft’s initiative showcases a new openness, stripping away the cloak of corporate secrecy, while embracing the existing patent system. The company has gone so far as to provide a downloadable data file of all Microsoft patents: all 40,786 of them as of March 25. The list is massive and extensive, from ZL201020107444.8, a kidney disease detection method which it acquired from Zhongshan Baoyuan Biotechnology Engineering Co., Ltd., to 314229, a media player technology that Microsoft developed internally.
That’s unprecedented, and it would be a major benefit to business and technology executives if all companies did that … or if the U.S. Patent and Trademark Organization made patent information that easily — and transparently — available. While the USPTO makes all patents searchable, it’s not always clear who owns or controls a patent. And that’s a scenario that lends itself to patent trolls, who thrive on the gamesmanship that opacity allows.
It’s a move that Microsoft invites other companies to follow, the company lawyer I spoke to made clear.
The question is: Will companies follow Microsoft’s model or Google’s? Will they start offering patents for free open-source use, or focus on offering greater transparency around the patents they do own? And of course, there are multiple other alternatives, such as eliminating the patent system entirely, revamping it, or determining simple standard licensing terms.
As in many other scenarios, I’m sure that where companies stand will be greatly determined by what they currently own, and how powerful they feel they are currently within the existing situation.