# Re the Microsoft vs Motorola lawsuit how can you patent a conceptual future use? **URL:** \ **Category:** Factual Questions\ **Created:** [October 2, 2010, 7:00am UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832 "2010-10-02T07:00:47Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [October 2, 2010, 7:00am UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/1 "2010-10-02T07:00:47Z")
[Pet this story it](http://www.ft.com/cms/s/2/8b1ecaa2-cdb2-11df-9c82-00144feab49a.html)appears that Microsoft is suing Motorola for making a smartphone because Microsoft patented the concept that one day you would send and receive mail on your phone. I don’t get it. It seems bizarre to be able to patent possible future uses for a device that the technology does not have the current capability to driver. > [@](#): > > On Friday, Microsoft filed claims with the US International Trade Court and in a Federal court in Seattle, accusing Motorola’s Android handsets of infringing nine of its patents. The claims cover some of the most basic functions on smartphones, including the way they synchronise with e-mail held on servers, as well as with calendar and contacts information. > > While the suit targets Motorola, “the patented features implicated in the action are in the Android platform” itself rather than in technology added by the handset maker, said Horacio Gutierrez, Microsoft’s deputy general counsel. > > Legal actions tend to be filed against a handset’s maker rather than producers of the underlying software or other technologies in the device, since the hardware producer takes on direct responsibility for “clearing” the intellectual property rights involved in their products, according to one legal expert. > > Motorola said it would “vigorously defend itself” against the Microsoft claim, while Google said: “We are disappointed that Microsoft prefers to compete over old patents rather than new products. Sweeping software patent claims like these threaten innovation.” > > The action comes shortly before the launch of handsets running Microsoft’s Windows Phone 7 operating system, a delayed response to touchscreen smartphones such as Android handsets and the iPhone. > > The timing did not appear to be a coincidence, suggested Al Hilwa, an analyst at IDC: “I have no doubt that Microsoft wants to make sure everyone understands the value of the IP protection that comes with licensing their products, as opposed to unprotected software like Android where the device makers have to fend for themselves ---
**Author:** ![Gukumatz](https://avatars.discourse-cdn.com/v4/letter/g/74df32/32.png) [@Gukumatz](https://boards.straightdope.com/u/Gukumatz)\ **Post date:** [October 2, 2010, 2:19pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/2 "2010-10-02T14:19:33Z")
EDIT: Need my coffee. ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [October 2, 2010, 2:31pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/3 "2010-10-02T14:31:23Z")
> [@astro](#): > > [Pet this story it](http://www.ft.com/cms/s/2/8b1ecaa2-cdb2-11df-9c82-00144feab49a.html)appears that Microsoft is suing Motorola for making a smartphone because Microsoft patented the concept that one day you would send and receive mail on your phone. I’m not seeing that at all in the article. Microsoft developed techniques for synchronizing mail on the phone with mail on different servers. That’s not the same thing as sending and receiving mail. Nor do I see any evidence that this patent was developed before the capability existed. The inherent evil-ness of software patents is a different subject, best handled in Great Debates. It does appear to be true, however, that you can’t develop a device with any sort of interesting software capabilities at all without tripping over tens or even thousands of pre-existing software patents, most of which are written so broadly that they can be interpreted to encompass just about any functionality. ---
**Author:** ![JWT\_Kottekoe](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@JWT\_Kottekoe](https://boards.straightdope.com/u/JWT_Kottekoe)\ **Post date:** [October 2, 2010, 2:41pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/4 "2010-10-02T14:41:12Z")
> [@astro](#): > > Can you patent a conceptual future use? Why not? There is no requirement to actually implement an idea in order to get it patented. The old cartoon image of making a protoype and taking it to the patent office is not the way it works. IMHO, patent law places too much emphasis on the “inventive step” and not enough on the hard work of developing a product and a business. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [October 2, 2010, 3:08pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/5 "2010-10-02T15:08:33Z")
> [@astro](#): > > [Pet this story it](http://www.ft.com/cms/s/2/8b1ecaa2-cdb2-11df-9c82-00144feab49a.html)appears that Microsoft is suing Motorola for making a smartphone because Microsoft patented the concept that one day you would send and receive mail on your phone. Read up on NTP vs. RIM. NTP sued RIM and won a settlement over basically exactly the same thing. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [October 2, 2010, 3:32pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/6 "2010-10-02T15:32:10Z")
I recall reading in some Richard Feynman book about how he and his buddies at Los Alamos just sat around and came up with as many uses for nuclear power they could think of for patenting. Nuclear rockets. Nuclear heaters. Nuclear automobiles. Et cetera. This is literally just a bunch of guys sitting around a table and putting “nuclear” in front of every word they can think of. Sure enough, he got calls for the next two decades asking for rights to develop his “patents”. How’s that for the “inventive step”? I should get a stack of patent paperwork handy for my next drunken bull session… Flying monkeys with mind control, novelty aspirins shaped like moon rovers, electric guitars with lasers instead of strings… Look out world, I’m going to be the next Edison! ---
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [October 2, 2010, 6:15pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/7 "2010-10-02T18:15:59Z")
This is very common practice. When I was working with a lawyer on a patent application for something having to do with broadcast television, we walked through other potential transfer media, including DVDs, streaming video, satellite video, and so forth, and I came up with a brief explanation of how it could work on each medium, even though I’d never developed or tested it on those media. > [@DrCube](#): > > I recall reading in some Richard Feynman book about how he and his buddies at Los Alamos just sat around and came up with as many uses for nuclear power they could think of for patenting. Nuclear rockets. Nuclear heaters. Nuclear automobiles. Et cetera. This is literally just a bunch of guys sitting around a table and putting “nuclear” in front of every word they can think of. Sure enough, he got calls for the next two decades asking for rights to develop his “patents”. The book is _Surely You’re Joking, Mr. Feynman: Adventures of a Curious Character_. It wasn’t a group of buddies sitting around a table. It was Feynman talking to lawyers (although he didn’t realize what they were doing at the time). And they were real patents. ---
**Author:** ![Cerowyn](https://avatars.discourse-cdn.com/v4/letter/c/82dd89/32.png) [@Cerowyn](https://boards.straightdope.com/u/Cerowyn)\ **Post date:** [October 3, 2010, 3:40pm UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/8 "2010-10-03T15:40:06Z")
Both of my patents were filed long before we created the “invention” to implement the concepts. As long as all that remains is essentially engineering, you can patent something without actually having to build it first. ---
**Author:** ![RaftPeople](https://avatars.discourse-cdn.com/v4/letter/r/6f9a4e/32.png) [@RaftPeople](https://boards.straightdope.com/u/RaftPeople)\ **Post date:** [October 4, 2010, 5:25am UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/9 "2010-10-04T05:25:20Z")
> [@Cerowyn](#): > > Both of my patents were filed long before we created the “invention” to implement the concepts. As long as all that remains is essentially engineering, you can patent something without actually having to build it first. I think it’s more correct to say “as long as you can write down something on paper, no matter how trivial, you can patent it” Supporting evidence (1 of many): the 1 click patent ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [October 4, 2010, 7:54am UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/10 "2010-10-04T07:54:50Z")
Since patents have a much shorter life than copyrights (20 years instead of 90+ years for the latter), it wouldn’t make a lot of sense to patent something that had no hope of being implemented in a commercial product for the foreseeable future. The only exception would be if there were a reason to belief you might have competition, in which case it might be better to see the patent expire than let someone else have it - just in case some chance did exist. It would be interesting to know just how many years are left on the patents they’re attempting to enforce. It would also be interesting to see if they have any obligation to justify their having failed to make any attempt to enforce those patents previously. I don’t know about patent law, but in other types of legal disputes, your inaction can often be construed as implied consent and can be raised as an affirmative defense. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 5, 2010, 12:06am UTC](https://boards.straightdope.com/t/re-the-microsoft-vs-motorola-lawsuit-how-can-you-patent-a-conceptual-future-use/555832/11 "2010-10-05T00:06:35Z")
From what I understand, the software patent world is designed so that everyone is infringing on someone else’s patent. This normally balances out, as you don’t want to sue one company as they can turn around and sue you for a patent you are violating. Apparently Microsoft stands to win a big in this case, and it’s worth it. Or Motorola doesn’t have any good patents used by Microsoft.