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Microsoft Opens Pandora's Box

Its General Counsel told Fortune magazine that Linux and its friends infringe 235 Microsoft patents

Microsoft has let loose the Furies.

It would love the three terrible winged goddesses in charge of avenging wrongs to bring open source to book but it seems inevitable that Microsoft will get entangled in their serpentine hair.

It's a PR situation fraught with visions of Tim Robbins wading through sludge to break out of Shawshank State Prison.

Microsoft opened Pandora's box when its general counsel Brad Smith and licensing chief Horacio Gutierrez told Fortune magazine that Linux and its friends infringe 235 Microsoft patents.

Microsoft has publicly groused about patent violations before and trumpeted a few Linux-embracing patent deals lately but last weekend was the first time it publicly offered a count.

Microsoft has had years to kick around how it was going to enter this particular public arena and so far its execution doesn't feel as crisp, shall we say, as it ought to for something so well considered.

Suffice it to say the amount of pixel ink that has subsequently been spilled about its charges would float a regatta of model boats, most of them little warships training their guns on Redmond.

Microsoft blames Fortune for making it sound litigious. It says it doesn't want to sue anybody; it just wants to parlay and get paid for the infringement. Open source should be subject to the same rules of engagement as everybody else, it says.

And according to what Gutierrez told Fortune senior editor Roger Parloff "This is not a case of some accidental, unknowing infringement. There is an overwhelming number of patents being infringed," making it sound treble-damages expensive.

Well, not filing suit is a pretty notion but given the level of Penguinista intransigence it's hard to see how Microsoft can stay out of court and not be called a girlie man, accused of being all bluster and bluff signifying nothing. The copyleftists are already calling it out and daring it to sue.

Heck, Microsoft's decision to turn up the patent volume right now may have something to do with some statute of limitations or another. You can't let people trespass interminably without sacrificing your own rights.

Red Hat would seem a logical choice. It's high-profile, not all that well-liked by the Linux community, no IP to speak of and has limited resources.

Of course how Microsoft would sashay through such minefields that would spring up as the Open Invention Network concocted by IBM et al to collect IP that can be used as a deterrent to any Microsoft suit is a question - and a good reason why Microsoft would rather negotiate.

Anyway, Smith wouldn't say which 235 patents, or how they might be infringed - a fence he can't sit on interminably - but he did categorize the alleged infringement.

The Linux kernel allegedly infringes 42 Microsoft patents; the user interface allegedly infringes 65 Microsoft patents; OpenOffice allegedly infringes 45 Microsoft patents; free e-mail programs allegedly infringe 15 Microsoft patents; and unspecified free software often bundled with Linux distributions allegedly infringe another 68 Microsoft patents.

OpenOffice sounds like a good bet but who does it sue? Sun? Don't they have a cross-license arrangement?

After the story broke, Microsoft reflected on the fact that the average infringement suit only involves two patents and quoted the founder of the Free Software movement Richard Stallman as saying last year that "Two years ago, a thorough study found that the Linux kernel infringed 283 different software patents, and that's just in the US. Of course, by now that number is probably different and might be higher."

According to Microsoft, "The real question is not whether there exists substantial patent infringement issues, but what to do about them." Its immediate solution is for "any customer that is concerned about Linux IP issues…to obtain their open source subscriptions from Novell."

Of course the open source contingent calls Microsoft's patent claims unreconstituted FUD and of course the recently fortified GPL 3, still in draft, would cut the legs out from under Microsoft's pretty patent arrangement with Novell (if it stands up in court), but as long-time Microsoft watcher Rob Enderle says the GPL 3 restrictions might help Microsoft in court and with end users looking for a business solution to a business not a religious problem.

Free Software counsel Eben Moglen contends that the back of any Microsoft patent claim can be broken in a variety of ways and Linux creator Linus Torvalds waded in with the observation that most operating system patents are probably old and worthless by now.

Ya gotta figure that all of those 235 Microsoft patents would never make it through a validity test. Still, Microsoft may have a relatively convincing story to tell.

There have always been hazy rumors about Microsoft making patent demands, but according to the Fortune story Microsoft has been approaching end users since 2004 with its patent claims and according to Smith some "major brand name companies" entered into direct patent licenses with Microsoft. They are said to include financial houses, healthcare operations, insurance firms and IT outfits. But other companies Microsoft approached wanted Microsoft to cut a deal with the Linux distributors.


Novell CEO Ron Hovsepian with Microsoft's Steve Ballmer

Last spring Microsoft and Red Hat were reportedly in "serious patent negotiations" when Novell CEO Ron Hovsepian called Microsoft looking for Windows-Linux interoperability - the beginnings of the Microsoft-Novell GPL 2-skirting patent-coupon arrangement that has brought down the wrath of the free software establishment on their heads - and inspired FSF to create its loophole-plugging codicil to the GPL 3 rewrite.

Fortune says that "Microsoft had hoped that the Novell deal would become a model it could use to collect patent royalties from other distributors of free software. In that respect, its 'bridge' to the free world appears to have failed. That, in turn, seems to have taken us a step closer to patent Armageddon. 'The only real solution that [the free software] folks have to offer,' Smith told Fortune, 'is that they first burn down the bridge, and then they burn down the patent system. That to me is not a goal that's likely to be achieved, and not a goal that should be achieved.'"

If the next version of the GPL blocks Microsoft from collecting royalties from the distributions then it's back to collecting from major Linux users. Parloff asked Microsoft CEO Steve Ballmer if he's prepared to sue his own users à la SCO and the record industry.

"That's not a bridge we've crossed," Ballmer is quoted as saying, "and not a bridge I want to cross today on the phone with you."

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.NETDJ News Desk monitors Microsoft .NET and its related technologies, including Silverlight, to present IT professionals with news, updates on technology advances, business trends, new products and standards, and insight.

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Most Recent Comments
JAD 05/20/07 07:01:30 PM EDT

Microsoft suing Linux users would be like GM suing me because the other brand car I bought infringes a GM patent. The other brand would be GM's target, not the users. Microsoft's problem is that nobody is actually selling Linux - it's free. Redhat and the likes are selling the package, not the software itself.

.NET News 05/18/07 01:13:48 PM EDT

And according to what Gutierrez told Fortune senior editor Roger Parloff 'This is not a case of some accidental, unknowing infringement. There is an overwhelming number of patents being infringed,' making it sound treble-damages expensive. Well, not filing suit is a pretty notion but given the level of Penguinista intransigence it's hard to see how Microsoft can stay out of court and not be called a girlie man, accused of being all bluster and bluff signifying nothing. The copyleftists are already calling it out and daring it to sue.

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