Saw another article today where Balmer talks about the Novell/Microsoft deal. Once again he demonstrates in my opinion how extremely broken the whole patent system around software is and how companies are trying to abuse that brokenness.
While I have little love for organisations like MPEG LA at least they clearly define what they license out. If you take a license for MPEG4 for instance you will get a full list of patent numbers and nations which they apply to. If one would like to challenge or work around those patents one would at least be able to figure out what one are up against.
In the Microsoft case they are not licensing something concrete for a specific amount of money. Instead they are basically saying ‘we have a thicket of patents and we think a unquantified subset of them applies to you, pay a fee or you risk a lawsuit’. So if you want to do a risk assesment or try to work around these patents your only option is to dig through the global (primarily US) patent office databases for anything concerning Microsoft or companies bought by Microsoft and try to figure out if any of those patents apply to anything you do or have. The cost of such a move is probably prohibitive. Of course if you do find some patents which could apply to something you do, then the question of wether they should have been granted in the first place comes up. You then have the option to spend lots of money on trying to find prior art to invalidate the patent(s) in question. But the problem here is that most companies who do patent blackmail tend to make sure that their licensing fees are lower than the expected cost of getting their patents invalidated, so you are stuck in a lose/lose situation. You can give in to their crocked ways and license their patents no matter how bogus, or you can try to fight them and end up spending even more money. One could dream of a situation where the cost of any patent prior art research and litigation should be covered by the US patent office, as they are the ones who are primarily to blame for the current mess.
Not sure this situation can be fully remedied without the US doing a full rehaul of their patent system, but maybe a stopgap measure would be a law that forbids the claim of patents against a competitor without being specific about which patent and which application implementing it at least. That would put much more of cost on the would be attacker instead of the defendant.
As I see it, the current patent situation is similar to that of the atom bomb: Nobody actually wants to use it, but everyone wants to have it either to threaten those who doesn’t have it or to stop threats from those who have it.
Starting a patent war would have terrible consequences for everyone. Microsoft, who would be the biggest loser, knows this and will never start the war.
So either we’ll get to a state of equilibrium where “I won’t sue you if you don’t sue me” or we’ll get rid of patents altogether (which is what will finally happen, in my opinion, though not too soon).
For individual developers or small organizations this situation is a big problem, though (they don’t have the atom bomb!)