4 ms·

From the linked article: > What's interesting to me, as a clear layman observer, is why Microsoft didn't know that it would be so easy to find so much evidence

by mhw 15y ago

From the linked article: > What's interesting to me, as a clear layman observer, is why Microsoft didn't know that it would be so easy to find so much evidence of prior art against these five asserted patents. Obvious answer, based on experience of large organisations: Legal and engineering are in different silos and don't talk to each other, except through senior management with limited bandwidth and legal/engineering understanding.

netrus 15y ago
Legal people decide what to patent?
- mhw 15y ago
  Actually, they probably do have a significant hand in it. I suspect there have been more than a few patents submitted more because the legal team thought they could manage it than because the engineers thought there was something significant to protect. But the point I was getting at is that I suspect that in this kind of case the selection of patents to put in the legal case against B&N was down to the lawyers picking from a long list, and the chances of them asking the engineers whether they'd stand up in court were reduced due to the organisational structure.
naner 15y ago
I think it's more likely Microsoft knew and didn't care. These "obvious" patents have been profitable for quite some time and once you are awarded the patent the burden of proof (and legal costs) falls to the alleged infringer. Also, take this with a grain of salt, but I vaguely recall reading somewhere that using prior art in court to invalidate a patent is much more difficult than we assume.
- WalterGR 15y ago
  I think it's more likely Microsoft knew and didn't care. The parent to your comment - by mhw - is pretty darned close. At Microsoft, legal and engineering are in different silos and don't talk to each other, except through senior management with limited bandwidth and legal/engineering understanding and also - in my experience, and to some extent - program managers. Developers (at least) are told not to look at patents or patent applications. I'd be surprised if PMs were told differently. Does MS Legal have engineers on staff to determine if something is worthy of a patent and to look for prior art? That's a possibility. But your "more likely" (granted - it's your opinion) doesn't seem incredibly likely (in my opinion.)
rhizome 15y ago
It's common practice for engineering to be discouraged from looking for prior art. This leaves the lawyers alone to determine what needs to be revealed on the patent app. http://m.paidcontent.org/article/419-why-tech-companies-want-engineers-to-ignore-patents-when-designing-prod/ http://m.paidcontent.org/article/419-why-tech-companies-want...
- ejames 15y ago
  It is common practice for engineering to be explicitly forbidden from looking at any patent whatsoever. A peculiarity of the U.S. patent system is that the size of the penalty is larger if the party accused of infringement is shown to have "knowingly" infringed. This is intended to punish deliberate malign behavior more severely than accidental infringement, because there is a lower penalty if you didn't realize there was a patent to violate. However, the second order effect is that accurate knowledge of patents is a legal liability. When considering whether a party "knows" about a patent, any engineer in the company would count. If Bob reads Patent A and Sally writes code that infringes Patent A, it's difficult for their company to prove that Bob never said anything to Sally. And why even take on the burden of that proof? As a practical matter, the potential legal cost of the larger infringement penalty outweighs the potential benefit of searching beforehand to ensure you aren't infringing. When I joined Microsoft, part of the instructions given to all new employees was that you should never view any patent, anywhere, ever, no matter what. Even if there is some reason why knowledge of patents is necessary, you should not try to search for or view those patents yourself, because if you look at a page of 50 patent search results to find the one you want, someone could argue you "know" about the other 49. This is arguably ridiculous, but when your goal is reducing legal costs, you must avoid even the possibility of ridiculous arguments, because arguing back requires time from lawyers. Standard operating procedure is for engineers to know nothing about patents and the legal department to make all patent-related decisions. Naturally, the legal department makes those decisions with the goal of maximizing profit from lawsuits against other companies and minimizing loss from lawsuits by other companies. The process deliberately and explicitly eliminates the possibility that accurate knowledge of software and hardware will be applied to patent decisions, because the only people with that knowledge are engineers, and letting engineers know about patents increases your legal risk. Since the Patent Office also does not have the manpower or technical resources to make accurate decisions about engineering patents, and in any event is not incentivized to reject patent claims, patents on average bear no relation to reality. They're determined entirely by what you can get away with in court.
LarryMade 15y ago
I think the NDA requirement before revealing the infringing patents is a telling sign. They know they were weak and stand on shaky ground. I had thought that if some entity was to properly assert their patent rights, they had to make the specific patent claims known to the parties concerned which gives a period of time for the potentially infringing company to rectify, or to progress further into arbitration. Microsoft seems to be playing it like a organized crime protection scheme.

by mhw 15y ago

netrus 15y ago

Legal people decide what to patent?

mhw 15y ago
Actually, they probably do have a significant hand in it. I suspect there have been more than a few patents submitted more because the legal team thought they could manage it than because the engineers thought there was something significant to protect. But the point I was getting at is that I suspect that in this kind of case the selection of patents to put in the legal case against B&N was down to the lawyers picking from a long list, and the chances of them asking the engineers whether they'd stand up in court were reduced due to the organisational structure.

naner 15y ago

I think it's more likely Microsoft knew and didn't care. These "obvious" patents have been profitable for quite some time and once you are awarded the patent the burden of proof (and legal costs) falls to the alleged infringer. Also, take this with a grain of salt, but I vaguely recall reading somewhere that using prior art in court to invalidate a patent is much more difficult than we assume.

WalterGR 15y ago
I think it's more likely Microsoft knew and didn't care. The parent to your comment - by mhw - is pretty darned close. At Microsoft, legal and engineering are in different silos and don't talk to each other, except through senior management with limited bandwidth and legal/engineering understanding and also - in my experience, and to some extent - program managers. Developers (at least) are told not to look at patents or patent applications. I'd be surprised if PMs were told differently. Does MS Legal have engineers on staff to determine if something is worthy of a patent and to look for prior art? That's a possibility. But your "more likely" (granted - it's your opinion) doesn't seem incredibly likely (in my opinion.)

rhizome 15y ago

It's common practice for engineering to be discouraged from looking for prior art. This leaves the lawyers alone to determine what needs to be revealed on the patent app. http://m.paidcontent.org/article/419-why-tech-companies-want-engineers-to-ignore-patents-when-designing-prod/ http://m.paidcontent.org/article/419-why-tech-companies-want...

ejames 15y ago
It is common practice for engineering to be explicitly forbidden from looking at any patent whatsoever. A peculiarity of the U.S. patent system is that the size of the penalty is larger if the party accused of infringement is shown to have "knowingly" infringed. This is intended to punish deliberate malign behavior more severely than accidental infringement, because there is a lower penalty if you didn't realize there was a patent to violate. However, the second order effect is that accurate knowledge of patents is a legal liability. When considering whether a party "knows" about a patent, any engineer in the company would count. If Bob reads Patent A and Sally writes code that infringes Patent A, it's difficult for their company to prove that Bob never said anything to Sally. And why even take on the burden of that proof? As a practical matter, the potential legal cost of the larger infringement penalty outweighs the potential benefit of searching beforehand to ensure you aren't infringing. When I joined Microsoft, part of the instructions given to all new employees was that you should never view any patent, anywhere, ever, no matter what. Even if there is some reason why knowledge of patents is necessary, you should not try to search for or view those patents yourself, because if you look at a page of 50 patent search results to find the one you want, someone could argue you "know" about the other 49. This is arguably ridiculous, but when your goal is reducing legal costs, you must avoid even the possibility of ridiculous arguments, because arguing back requires time from lawyers. Standard operating procedure is for engineers to know nothing about patents and the legal department to make all patent-related decisions. Naturally, the legal department makes those decisions with the goal of maximizing profit from lawsuits against other companies and minimizing loss from lawsuits by other companies. The process deliberately and explicitly eliminates the possibility that accurate knowledge of software and hardware will be applied to patent decisions, because the only people with that knowledge are engineers, and letting engineers know about patents increases your legal risk. Since the Patent Office also does not have the manpower or technical resources to make accurate decisions about engineering patents, and in any event is not incentivized to reject patent claims, patents on average bear no relation to reality. They're determined entirely by what you can get away with in court.

LarryMade 15y ago

I think the NDA requirement before revealing the infringing patents is a telling sign. They know they were weak and stand on shaky ground. I had thought that if some entity was to properly assert their patent rights, they had to make the specific patent claims known to the parties concerned which gives a period of time for the potentially infringing company to rectify, or to progress further into arbitration. Microsoft seems to be playing it like a organized crime protection scheme.