Open letter to Microsoft Netherlands about Software Patents

Original Dutch version

M. van der Bel
General Manager Microsoft Netherlands
Microsoft B.V.
Boeing Avenue 30
1119 PE Schiphol-Rijk

Regards: Open Letter to the director of Microsoft Netherlands

Amsterdam, May 29, 2005

Dear Mr Van der Bel, Dear Michel,

Enclosed you find the report About "trivial" software patents: the IsNot case, that we recently wrote about the subject of software patents. It will be presented at the Holland Open Source Conference 2005 in Amsterdam. This document also plays a role in the project "Study of the effects of allowing patent claims for computer-implemented inventions" that is being carried out for the EC by, amongst others, CWI and MERIT.

This subject is controversial, first and foremost because in our own academic environment the idea of software patents has got a bad reputation and is being considered as something undesirable. Nonetheless, we try to formulate a clear research agenda for this subject. A relevant, but limited, aspect of it concerns so called trivial patents. A clear definition of this notion is not so easy to give, but a trivial patent is considered to be a patent that evidently lacks sufficient innovation.

We also propose the Integrity axiom for software patents, that states that the person who owns a patent or applies for one has as explicitly stated point of view that the subject matter of the application regards an invention that deserves exclusive IPR protection. In addition we assume that when an organization is mentioned as source of the patent the relevant management of that organization shares this opinion.

This brings us to the central question of this letter. We have studied several patents that raise questions (we consider patent applications also as patents as can be seen from the life cycle proposed in our report). The IsNot patent is an example of these patents and for simplicity we limit ourselves to it. We do not understand how the authors or the relevant management can hold the opinion that 'IsNot' is a patentable invention. In our opinion, you are part of the relevant management in this matter since you are Microsoft's ambassador in the Netherlands. Can you provide us with an explicit answer to our question about this patent?

We want to place this question in a wider perspective. First of all, we don't have any indication that only Microsoft is applying for trivial patents. We are currently preparing comparable letters to other companies and we will send you copies of them. We consider this an open letter and place it on a publicly accessible web site. We think that the public status of this letter is reasonable because its subject matter is relevant for many researchers and because your answers only have a meaning for us when they are publicly known.

This letter does not stem from negative experiences with Microsoft but rather the contrary. We value your open attitude and style so far. In addition, we are well aware of the fact that Microsoft Research is very strong. However, that is at the same time a matter that deserves attention. Currently, Microsoft employs the top researchers in software. We think that a public statement of these researchers, whose names we cannot mention here for reasons of procedure, would already be a major contribution. This is independent of the question whether or not we subscribe to their point of view. When the top three software experts associated with Microsoft Research clearly state their written opinion about this matter then we assume that, because of their high reputation, the problem would be eliminated.

Because of the considerable public interest of this matter we do not want to approach these researchers using the traditional scientific channels that we have, of course, at our disposal. At this moment, we assume that our concern about the validity of the IsNot patent will be shared by Microsoft researchers and that they would not like to avoid (by way of legal jargon) answering our urgent and actual question how reasonable this patent is.

There are also other patents that raise questions. Patents 6727830, 6748582 and 68954026 raise the question what an infringement would mean. The idea of these patents seems straightforward and known (e.g., manipulating e-mail addresses as objects). When one reads these patents as IPR protection of a very specific design of the main idea of the patent, then infringement can be avoided by choosing a slightly different design. The question whether these patents are trivial then depends on how broadly one should interpret the patent text. And this is precisely what we are unable to do on our own.

We have the strong suspicion that the software projects we are involved in may contain infringements of these patents (this also holds for the IsNot patent mentioned earlier). Insight in this matter is therefore of utmost importance for the actual practice of our own research in software engineering (i.e., the ASF+SDF Meta-Environment, the ToolBus, tools for the specification language PSF and the PGA toolkit). Our second question is therefore: with whom inside Microsoft can we have technical discussions about the scope of these patents so that we can better judge the implications for our own research.

We write this letter in our role as researchers in the area of theoretical and practical software engineering. As usual, we operate as researchers from the affiliations mentioned below but we do not represent the opinion of our employers.

For completeness, we want to add that our interest for these patents is not inspired by the thought that they would form a threat for open source development. It is our explicit opinion that the point of view that this threat does exists is premature, as long as one has not yet obtained better insight in the real meaning of such patents. Our primary concern is about the unclear status of prior art in relation to (trivial) patents. We consider this combination as possibly the largest obstacle for innovation in software engineering.

Given these major unclear issues we see no reason to commit to the point of view that open source development should not be hindered at all by existing patents. Open source in its many flavors is just a business model that should function like all others in the context of a (possibly revised) patent system.

By writing this letter, we intent to start a discussion that can be continued in many different ways. We hereby guarantee that we will respond in a constructive, factual and unprejudiced manner to the points of view brought forward by Microsoft.


J.A. Bergstra (University of Amsterdam/University of Utrecht)
P. Klint (Centrum voor Wiskunde en Informatica/University of Amsterdam)

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