Microsoft to take on patent trolls

As tit-for-tat patent infringement litigation steps up a few notches in the telecoms world, people with a sense of irony will no doubt appreciate the news that Microsoft has signed up as the first member of a new organisation challenging specious software patents. The company that has threatened the likes of Salesforce and TomTom over their use of Linux (which Redmond claims infringes on Microsoft IP – an assertion that has yet to be tested in court) has signed up for Litigation Avoidance, a crowdsourcing service “designed to help companies analyse and act on patents of questionable quality.”

Litigation Avoidance is run by Article One Partners, an online community that uses crowdsourcing to bring together over a million scientists and technologists, where they collaborate to find evidence of prior art in order to nullify some of the more outlandish patent claims that have been filed with the US Patent and Trademark Office (USPTO). Article One is paid by organisations that use its crowdsourcing service to pre-empt litigation from “non-practicing entities”(NPEs,  a.k.a. patent trolls).

According to a statement from Microsoft chief patent counsel Bart Eppenauer, NPEs “continue to actively target large technology companies and often with portfolios of questionable quality.” Microsoft’s membership of the Litigation Avoidance programme was, he said, very much a defensive move designed to deter litigation.

The move comes in a week that’s seen Apple joining Google in the legal sights of patent licensing company Lodsys, which claims developers for both companys’ app stores are violating its patents. Most of the patents relate to in-app billing technology; Lodsys has already sued the likes of Canon, HP and Motorola. Earlier this year, US company H-W Technology launched its claim to ownership of a patent for an “internet phone with search and advertising capability.”

The recent move towards legal action against smartphone application developers is causing concern, not least among smaller application developers who lack the financial means to respond to legal challenges. Many commentators are beginning to express concern that, should developers give in to demands from the likes of Lodsys and H-W, the floodgates will be opened for a sea of other applications for the same technology.

According to Article One, patent quality is a “widely recognised problem facing companies” that spend an estimated $5bn a year defending NPE lawsuits in the US. Article One pointed to the high-profile case against Blackberry maker RIM which in 2006, settled a patent infringement claim from NTP Incorporated for $612m; the USPTO subsequently found that 97 per cent of NTP’s claims were invalid.

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