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Microsoft's chief patent counsel Bart Eppenauer: ‘We believe our patent laws have served the country very well.’

Microsoft's chief patent counsel Bart Eppenauer: ‘We believe our patent laws have served the country very well.’


But will he accept our challenge to write his next legal document with a stylus?

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bart eppenauer
bart eppenauer

Bart Eppenauer is Microsof't Chief Patent Counsel — the man who oversees the company's enormous portfolio of 20,000 patents. That's a big job at a time when technology patents are under increasing scrutiny — especially patents on software and mobile technologies, which have sparked billions in litigation around the world. We spoke for a few minutes about how he sees the landscape changing, and how he's shaping Microsoft's policy for the future.

So what does the Chief Patent Counsel at Microsoft do when he wakes up in the morning? What's your first move?

What I love about my job is that I have the good fortune of seeing all of the amazing innovations happening across Microsoft. I've been at Microsoft for fifteen years now and really have been able to see how we've grown, how our technology has grown, and how our leadership position has grown.

"Microsoft invests more than nine billion dollars annually every year in research and development."

What we strive to do is integrate as well as we can with all the different business divisions to really understand where the technology investments are being made, where the innovation is occurring, what the priorities are for the future, and put a patent strategy in place that is aligned with and supports the business.

The famous story is that Microsoft had just one patent several years ago. Now you've got this enormous portfolio. How do you see that being used?

It really starts with Microsoft's investment and commitment to research and development. Microsoft invests more than nine billion dollars annually every year in research and development, and we really see intellectual property and patents as foundational and very much aligned to that commitment to research and development.

When you talk about investing in innovation, is the patent process directly a part of that?

We really see patents and intellectual property as a key element in this entire cycle of innovation. IP is the currency of innovation, and companies and entrepreneurs and individuals can use IP as currency to collaborate, to share intellectual property, and to work towards building and making great new products and services.

"IP is the currency of innovation."

In a lot of ways, Microsoft uses that currency of innovation through IP licensing arrangements. Since 2003, we've entered into more than 1100 IP agreements with various companies, small, large, across the world, and really that's about open innovation and collaboration and sharing technologies.

We engage in both basic research and also applied research to develop products that advance the state of technology, and we then disseminate those innovations in our products and in our services and through our intellectual property. You invest in R&D, you create intellectual property, you build products and license IP, you get a return on that investment, and you can use that to generate more research and development.

How do you decide what patents you're going to license? For example, the Kinect. You've got a whole host of patents on the Kinect. I'm assuming you're not going to open that up for licensing any time soon. How do you decide what to keep proprietary and what to open up?

We really opened the doors of our licensing business in 2003, and we broadly licensed our patents to all commerce. That said, we do have certain areas where we'll decide that it is not in Microsoft's interest to license certain areas of technology. With the Kinect and natural user interface, we have something around six hundred or so patents that we feel relate to or cover different aspects of NUI technology like touch, speech recognition, gesture recognition, and skeletal tracking. These things really make Kinect light up — they're the magic of Kinect. We're evolving our licensing strategy when it comes to NUI.

I'm sure you know the overwhelming feedback from our readers is that software patents are stupid, that many of them are overbroad, and most of them are at least on the edge of being overbroad. There's a drumbeat to get rid of them entirely. How does that affect Microsoft's policy — do you even care?

We certainly care. We care a great deal about the ability to have protection on software and software-related patents, and so we certainly see quite a bit of the discussion around software patents. We take that very seriously.

"We care a great deal about the ability to have patent protection on software."

First of all, it depends on what you mean by software. Our view is that very abstract concepts should not be patentable. That's actually the law and the Supreme Court said so last year. But we do believe that there are tremendous technical contributions from software to computing and technology, and that software-related or computer-implemented inventions are as worthy of patent protection as any form of technology or science. And if you think about even where technology and software is headed, the lines between software and hardware continue to come closer together — software functionality is moving in to the hardware and vice versa. We take the view that if there's practical application as opposed to some broad abstract concept, you should be entitled to patent protection.

There are ways to address many of the concerns around software patents and business method patents being overly broad, there are provisions in the law. We actually think the USPTO is doing a pretty good job of addressing those.

What I see, personally, is courts struggling to graft patent law onto an entirely new class of inventions. Do you think there is a need for broad reform to create what would explicitly be a "software patents"? Or are we kind of muddling our way towards that anyway?

We don't believe there should be special worlds or special categories for software patents per se. It's not unique, this question of "what is patentable?" If you go back a hundred years or a hundred and fifty years, to the telegraph and the telephone and manufacturing technology, there was really significant debate at the time around the appropriateness of patent protection in those spaces, and courts and industry worked through it and moved forward.

"Eventually this will normalize and sort itself out."

Given the amount of litigation and licensing activity in the smartphone space and in mobile computing today, software related patents and computer patents are top of mind for people. But what's happening here is what's already been done with prior technologies over the course of modern history. There's a sorting out of intellectual property rights, and that's happening.

Eventually this will normalize and sort itself out, so we don't believe any special measures are needed beyond good focus on applying the law correctly and understanding the law. You want to to invest and create new technologies and not constrain that by putting rules on patentability.

But is this worth it? Is it worth the cost to Microsoft, is it worth the cost to a smaller developer, is it worth the cost to society to have these sorting-out processes? Is the net benefit of protecting innovation with patents worth the cost of perhaps not gaining innovation while we sort things out?

We strongly believe that intellectual property protection in patents are critical to innovation and so — emphatically — yes. It is worth the debates and the challenges and even the litigation and the sorting out of intellectual property rights. If companies and commercial enterprises and entrepreneurs and startups in garages don't have the opportunity to protect inventions and be compensated for the investments they make, the cycle of sustainable innovation would become disrupted. That would be a far greater price to pay in terms of the delivery of new technology and products and services that improve peoples' lives then the current debates that are going on and the challenges that are happening.

"We believe our patent laws have served the country very well."

If I gave you a magic wand and said you could change the system any way you want, it sounds like you would make some tweaks but overall leave things kind of alone.

We believe our patent laws have served the country very well. What patent offices around the world need to do, and they are taking very big steps in this direction, is work together so there's not redundant work being done — right now if you have an invention that's filed at the USPTO and in five or six or ten different offices around the world the same examination is being done over and over again. That work needs to be shared, and steps are being taken in that direction.

What do you think of the Twitter's licensing scheme for their employees? To me it seems like a very good PR move, but they've left themselves some clear outs.

We took a look at what Twitter has pledged around how they will think about their patent portfolio. It's a unique approach, and it's an interesting approach. Only time will tell on whether that serves Twitter well as they move forward with their business.

I imagine that you do a lot of writing every day. Do you think that you'll be able to switch to a Surface with a touch cover and pound out legal documents?

I can't wait. I'm using Windows 8 right now. We've done a really marvelous job. I don't have a touch screen on this laptop, but the keyboard and mouse input is really excellent. I can't wait to get a Surface in my hands and use all the touch capabilities. So yeah, there's no doubt about it.

So you think you'll be able to go to a touch keyboard entirely?

Yeah. That's what I do on the phone now, and that was a shift, but I use that phone for a whole range of things. I think that type technology is just getting better. We'll see what happens. Touch keyboard, soft keyboard, the types of technologies in Surface are really cool. Pen input. There's going to be a future for more pen-related input as well.

I will give you fifty dollars if you write your next legal memo with a pen on a glass screen.

Point well taken. Keyboards still have their uses!