Microsoft outlines some ground rules to prevent it from nicking your IP

Does Brad Smith protesteth too much? Nah, it'll be fine. Honest!

Big-hearted Microsoft has tried to make reassuring noises to calm the nerves of others who might be thinking of getting between the Intellectual Property (IP) sheets with the Seattle software giant.

Going into a tech tie-up can be a risky business for any IP owner. Fears that key IP and knowledge might be stolen and even used in competition can make collaborations difficult. And, er, it’s not as if Microsoft has made off with someone else’s IP in the past, or lobbed a sueball or two itself.

The seven points listed in the Microsoft Shared Innovation Initiative are supposed to provide clarity on what to expect on the IP front when working with the Windows maker, according to president Brad Smith.

All seem frighteningly obvious, and underline the somewhat difficult history Microsoft has had in the world of IP.

The first rule is Respect for ownership of existing technology.

“We each own the existing technology and IP that we bring to the table when we partner together. As we work with customers, we’ll ensure that we similarly will each own the improvements made to our respective technologies that result from our collaboration.”

So your bat, your ball and whatever else you brought to the game remain your own, along with any improvements that got made to your ball during the collaboration.

Unless you are a microblogging platform, in which case Microsoft has been historically quite happy to lift your code. Something that would have never happen in 2018’s fluffier and cuddlier MS.

Next up is Assuring customer ownership of new patents and design rights.

“As we work together to create new technology, our customers, rather than Microsoft, will own any patents and industrial design rights that result from our shared innovation work.”

The good news is that you get to keep the new IP that arises from your work with Microsoft, although the devil will be in the detail of proving who actually did what, and what constitutes an improvement over an existing technology versus something completely new.

Anyone who has had to endure completing an application for UK tax relief on Research and Development will understand the difficulty of proving the difference.

Even if you can prove that the IP is new, there is some more bad news. You will have to grant Microsoft a license as part of Licensing back to Microsoft.

“Microsoft will receive a license back to any patents and design rights in the new technology that results from the shared innovation, but the license will be limited to improving our platform technologies.”

Smith goes on to list the majority of Microsoft’s services, including Azure, Office 365 and Xbox, as candidates for such “improvement” as well as the nebulous-sounding “code and tools developed… to provide technical assistance to customers.”

In the wonderful new world of Microsoft CEO Satya Nadella, it is of little surprise to see Support for open source.

“If our shared innovation results in the creation of source code and our customers so choose, Microsoft will work with them to contribute to an open source project any code the customer is licensed to use.”

The previous incumbent of the CEO position, Steve Ballmer, was famously a little less supportive of open source projects, referring to the likes of Linux as a “cancer.”

There has been a sea change since, with Microsoft getting its tentacles into over 2,000 projects at GitHub and committing to help open source licensees deal with compliancy problems, (something the software business would have found useful after it was caught with GPLv2 code in the Windows 7 USB/DVD download tool in 2009.

In the Portability section, Microsoft makes the slightly ominous promise to not “prevent customers from porting to other platforms the new, shared innovations they own.”

Such a statement makes one wonder what clauses had been inserted into Collaboration Agreements in the past.

Finally, Microsoft promises Transparency and Clarity on all IP issues moving forward with executive sponsors appointed from all parties to deal with any questions that crop up as work progresses.

Presumably questions like “Oi! Did you copy my code?”

Smith promised continued Learning and Improvement, intending to listen and learn from customers. Sitting around a campfire, holding hands and singing together will not be made compulsory.

Customers about to go into partnership with Microsoft would be right to be a little surprised that the software business has felt the need to spell out principles that should already have been simple good practise.

Regardless of Smith’s largesse, close examination of any partnership or collaboration agreement should continue to form part of due diligence before leaping into Microsoft’s welcoming arms. ®

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