Monday, May 14, 2007

Microsoft says FOSS infringes 235 patents, up from 228 in 2004

There's a flutter of "micro-excitement" caused by a Fortune story that FOSS may infringe 235 Microsoft patents. Trouble is, this story is not exactly "news." As reported on IPBiz in 2004 ( Microsoft's Balmer on patent infringement by Linux): Linux violates more than 228 patents, Microsoft Chief Executive Steve Ballmer said at the company's Asian Government Leaders Forum in Singapore. He did not provide any details on the alleged violations, which the Linux community disputes.

From the Fortune article:

"We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair."

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

IPBiz wonders where IBM's Kappos is to talk of the Supreme Court's KSR decision fostering "open innovation" and collaboration. Further, if the stuff is incremental and predictable, where's the ip anyway? Although Fortune did NOT talk about Kappos' views, the article did suggest different interests as between IBM and Microsoft: Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM, Sony, Philips, Novell, Red Hat and NEC - set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux.

Fortune brings up the now over-used mutually assured destruction (MAD) symbolism:
It's a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers. IPBiz wonders if they have any original writers at Fortune?

Fortune on Microsoft's Brad Smith: A strawberry-blond Princeton graduate with a law degree from Columbia, Smith is a polished, thoughtful and credible advocate whom some have described as the face of the kinder, gentler, post-monopoly Microsoft. But that's not really an apt description of Smith; he projects intensity, determination, a hint of Ivy League hauteur, and ambition.

We're sitting at a circular table in Smith's office in Building 34 on the Redmond campus, with a view of rolling green lawns splashed with pink-blossomed plum trees. In the 1970s and 1980s, Smith recounts, software companies relied mainly on "trade secrets" doctrine and copyright law to protect their products. Patents weren't a big factor, since most lawyers assumed that software wasn't patentable.

But in the 1990s, all that changed. Courts were interpreting copyright law to provide less protection to software than companies had hoped, while trade-secrets doctrine was becoming unworkable because the demands of a networked world required that "the secret" - the program's source code - be revealed to ever more sets of eyes.

Wired wrote: The internet was abuzz this weekend about a Fortune article in which Microsoft General Counsel Brad Smith claims that Linux violates 235 patents. As noted above, IPBiz talked about the 228 patent story in 2004 (which may have been triggered by an OSRM report.

Larry Dignan wrote: Microsoft says free and open source software infringes on 235 of its patents. The real motive for Microsoft's patent volley may be the third version of the General Public License.

But following this patent back and forth (see Techmeme and Fortune article) is a lot like eating a condiment sandwich–it would be much better with some meat. How about some details. What exactly are these patents about?

Fortune mentions the approach taken by Microsoft to patents, without disclosing that it is the "IBM way":

So Microsoft took the third choice, which was to begin licensing its patents to other companies in exchange for either royalties or access to their patents (a "cross-licensing" deal). In December 2003, Microsoft's new licensing unit opened for business, and soon the company had signed cross-licensing pacts with such tech firms as Sun, Toshiba, SAP and Siemens.

***See also

A post on LinuxWorld includes the text:

It didn't take long for Elizabeth Montalbano to draw the obvious conclusion: "Microsoft Corp.'s aim to seek patent royalties from open-source distributors and users may be an attempt to use legal threats to deflect attention from larger questions surrounding its business, including lack of interest in new versions of core products and lackluster profit from new wares."


The most that this threatened patent attack can actually do is to drive the most shortsighted CIOs away from Red Hat—which increases the average intelligence of Red Hat's customer base, which tends to improve the company's products.

The latter text reminds IPBiz of a waggish comment made years ago when a certain public official went FROM California TO Alabama: it raised the IQ of both states.


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