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07 October 2010, 15:29

Is Microsoft running out of steam?

by Glyn Moody

Most people have heard about the 18th-century inventor James Watt and his steam engine; not so many know about the way he used patents to stifle competition and throttle further development of the technology:

Watt’s patent was very broad in scope (covering all engines making use of the separate condenser and all engines using steam as a "working substance"). In other words, the patent had a very large blocking power. The enforcement of almost absolute control on the evolution of steam technology, using the wide scope of the patent, became a crucial component of Boulton and Watt’s business strategy.

Eventually, after extensions gained through constant lobbying of politicians (some things never change), Watt's patent expired. Here's what happened next:

a group of mine "captains" (mine managers) decided to start publishing a monthly journal reporting the salient technical characteristics, operating procedures and performance of each engine. The explicit intention was twofold. First the publication would permit the rapid diffusion of best–practice techniques. Secondly, it would create a climate of competition among the engineers entrusted with different pumping engines, with favourable effects on the rate of technical progress.

Yes, open source steam engines, complete with code publication. As the accompanying graph in the article these quotations are drawn from demonstrates, in contrast to the 30 years of stagnation seen under Watt's steam engine patent, the open source steam engine community produced dramatic and continuing improvements in technology and performance.

Sadly, the use of patents to block competition is not a thing of the past:

Microsoft filed an action today in the International Trade Commission and in the US District Court for the Western District of Washington against Motorola, Inc. for infringement of nine Microsoft patents by Motorola’s Android-based smartphones. The patents at issue relate to a range of functionality embodied in Motorola’s Android smartphone devices that are essential to the smartphone user experience, including synchronising email, calendars and contacts, scheduling meetings, and notifying applications of changes in signal strength and battery power.

One difference, of course, is that Watt's patent at least related to a substantial technological development: in the case of Microsoft, we are dealing with the usual trivial and/or obvious patents - “scheduling meetings”, “changes in signal strength and battery power”. Even the synchronising email element, which presumably relates to Microsoft Exchange ActiveSync, is simply a question of dominant protocols, not market-enhancing improvements.

People forget that the central purpose of patents is to encourage real innovation, not simply reward people for being the first to file for even obvious ideas with over-stretched patent offices that set incredibly low bars. The world of patents has become perverted in recent years: patents are seen as valuable things in themselves – the more the merrier – irrespective of whether they do, truly, promote innovation. Worse: in the world of software, they are actually brakes on that innovation, particularly as they begin to interact and form impenetrable patent thickets. Once, even Bill Gates recognised the danger they represented:

In a memo to his senior executives, Bill Gates wrote, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”

Next: Microsoft and patents

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