How Microsoft Played The Patent Card, And Failed

By Andrew Orlowski in San Francisco
Published Thursday 23rd December 2004 08:58 GMT

Analysis In rejecting Microsoft's appeal this week a European court has dealt a significant setback to Redmond's attempts to mount an attack on competitors based on intellectual property litigation. The decision by Judge Bo Vesterdorf at the European Court of the First Instance reveals for the first time many of the legal arguments that were made behind closed doors this year. The parts that interest us here are the decision itself, which rejects the idea that communication protocols are any kind of "trade secret" [*], and the slightly astonishing admission from Microsoft itself that suing people for IP violations is bothersome, or in its lawyers' own words: "a particularly complicated and inefficient exercise." If we're to take the lawyers at their word (always a risk business), then what has so often been described as a patent war between Redmond and open source developers looks much more like a phony war. Put the two together, and we have a much clearer idea of Microsoft's strategy than we did twelve months ago. We'll begin by examining the basis for Microsoft's appeal, or technically, its "application for interim measures".

Microsoft argued that the communication protocols were protected by copyright under the Berne Convention. It also argued that communications protocols were covered by patents either granted, applied for, or that it intended to file before June next year. It specified three in particular, covering DFS, SMB and DCOM.

"The patent applications relate to Constraint Delegation and Active Directory Sites protocols," claimed Redmond's lawyers. If the protocols were disclosed, competition would suffer a chilling effect, they claimed.

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