----- Original Message -----
From: "Anne P. Mitchell, Esq. <amitchell(_at_)isipp(_dot_)com>"
<shedevil(_at_)gmail(_dot_)com>
To: <spf-discuss(_at_)v2(_dot_)listbox(_dot_)com>
Cc: <spf-discuss(_at_)v2(_dot_)listbox(_dot_)com>
Sent: Wednesday, September 22, 2004 11:27 PM
Subject: [spf-discuss] Disappointed, yet..not surprised (was Re:
Disappointed)
"I pressed him: "Will you fix the license?". I never really got a
confirmed
yes or no, but my feeling was "no" when we ended the conversation. I
suggested that they give their IP to the IETF (such as I believe there is
precedence of - I know that IBM has committed patents to the public domain
before in a similar act of openness), to which I was told that Craig
believed this was a reasonable idea, but that Bill Gates himself had
vetoed that idea because of the current focus on patent gathering and IPR
issues at Microsoft."
When MS lost the Apple look and feel lawsult, Gates vowed to change his
then relaxed posture of IP to one that will protect everything they do.
But the critical year was 1996 when is when the eligibility for software
patents were relaxed. In simple terms, prior to 1996, software was
copyrighted not patentable. However, it could be encapsulated with patent
of mechanical process for total IP protection. In 1996 (actual July 1995),
software methods were allowed to be patentable and a new application called
Provisional Patents were introduced. It was a low cost 1 page application
that give you 1 year to convert it to a full patent. Once these patents
began to be issued around 1998/99 and since then, this is when we began to
see the silly enforcements lawsuits. EOLAS was one of them. What made it
worst is that change of the rules in November 2000, which basically removed
the prior art due diligence not only from the patentee but from the examiner
himself. The idea is to put the borden on everyone else to disprove the
claim. However, there is a basis examination that must be done.
Unfortunately, it is difficult to get the expertise required unless it all
too obvious. There is where filing a protest might help the examiner for
this simple reason of guiding them in the right direction.
<shaking head>..the more things change, the more they remain the same.
I don't know how many of you knew Gary Kildall, or are familiar with
his story, but you can read about him here - pay particular attention
to the last paragraph.
http://www.pbs.org/wgbh/theymadeamerica/whomade/kildall_hi.html
What Kildall did not tell you is that Gates sent IBM to him first and it was
Kildall that refused IBM's initial offer for his CP/M based system demanding
an excessive royalty unacceptable by then standard IBM contractual and
business deals.
Gates got started in the compiler business. He was not in the OS business.
As the story goes, Gates was writing the compiler and other products for
Apple when IBM went to Gates to write the Apple products for their new
secret IBM PC project. IBM mentioned they also needed a OS so Gates refered
IBM to Kildall.
IBM blue suits went to Kildall's company which was in his home. Kildall
made them wait for nearly 1 hour in the patio before meeting them. An offer
was made. Kildall's excessive royalty demand was rejected. As the story
goes, this was done on purpose as the "hippy" did not wish to deal with IBM
blue suits. IBM went back to Gates complaining and Gates told them he can
provide a OS themselves. Gates got DOS from another programmer (forget his
name) for $50,000 plus royalties. Of course, Gates didn't tell them what he
wanted it for.
Now this is where in the annals of PC history, even the worst Gates haters,
gives him credit for one of the most brilliant business decisions and deals
of all times. It was such a deal that in hind-sight IBM admitted they
regretted accepting this first and only, never again to happen business
deals as it was the main reason for the inevitable lost of IBM PC dominance
in the market place.
Background #1: IBM only got into the PC business due to Wall Street board of
directors pressure. The story goes during a board meeting coffee break,
CitiBank asked IBM "Hey Radio Shack has this new personal computer business
that we are interested in evaluating. What is IBM going to offer?" With
that, IBM started the IBM PC project with a 1 year deadline. It was the
first time ever IBM every built a device using 100% 3rd party components.
They didnt' the manufacturing plants like they had for all their mini/main
frame computers. So they were under pressure to get everything they needed
to meet the 1 year deadline, including all software.
Background #2: In the late 70s, early 80s, the 'personal computer' was
still not deemed as a worthy device for corporate america. At best, they
were used as "smart" dump terminals. We used the PET and APPLE II as
process control data collection machines in the lab and field, but overall,
the corporate mindset was such that it couldn't be taken seriously. System
applications and solutions were mini and main frame based, not PC based. So
the IBM PC project was more done for marketing reasons, not because they saw
it as a future strategic direction.
Gates seeing IBM was building a computer from scratch with 3rd party
components, he envisioned the new market of clones. IBM entry into the PC
market place will get other businesses will enter it was well. They will
need an OS and he wanted to offer it to the 3rd party market. Gates,
understanding standard IBM contractual demands, with the help of his father
who is a lawyer, offered IBM a deal that gave IBM a exclusive branded
version of the OS called IBM DOS with a little to no royalties but Microsoft
will own the OS with no restrictions.
The arrogant IBM feelling they had the had the upper hand of this deal and
also thinking this was just passe with no reason importance in the real
corporate world, accepted the deal. Full ownership of the PC, IBM DOS.
Corporate america will buy IBM. Period. Whats to lose?
It was a brilliant move that IBM never recovered from. The clone came and
the rest his history.
PS: MS was paying DOS royalties until sometime in the early 90s where they
stop paying, claiming the current DOS has changed so much they didn't need
to pay royalties any more. It went to court. MS won.