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Microsoft Says Free Software Violates 235 Patents 1217

prostoalex writes "Microsoft told Fortune magazine that various free software products violate at least 235 patents, and it's time to expect users of this software to pay up patent licensing royalties: '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.'"
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Microsoft Says Free Software Violates 235 Patents

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  • by tqft ( 619476 ) <ianburrows_au@yahoo . c om> on Sunday May 13, 2007 @08:54PM (#19107885) Homepage Journal

    Last paragraph
    "
    If push comes to shove, would Microsoft sue its customers for royalties, the way the record industry has?

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

    Tech company sue it's own customers?
  • by notamisfit ( 995619 ) on Sunday May 13, 2007 @09:00PM (#19107927)
    US Patents are a matter of public record. USPTO even has a web search feature.
  • by Anomolous Cowturd ( 190524 ) on Sunday May 13, 2007 @09:03PM (#19107981)
    Catch up man. In Ubuntu you change your screen resolution by clicking the System->Preferences->Screen Resoultion menu option and choosing your new resolution from the dialog that pops up. There *are* bits that only techies would know, but the "common use" stuff is getting easier every day.

    Ubuntu is *definitely* easy enough for a n00b if it comes pre-installed and fully configured.
  • by notamisfit ( 995619 ) on Sunday May 13, 2007 @09:08PM (#19108011)
    He states the kernel is accountable for 42, and the rest are divied up between the GUIs and apps like OpenOffice. As for 'specific' infringement, look it up on the USPTO web site. They're all there.
  • by OmegaBlac ( 752432 ) on Sunday May 13, 2007 @09:14PM (#19108071)

    I would guess that Microsoft probably infringes on some number of IBM patents - but then, pretty much everyone does. The thing I don't know is, does Microsoft already hve some patent license agreement (presumably some sort of blanket agreement) with IBM to cover them?
    FTA:

    Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) 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.
    Microsoft has more than IBM to worry about. I'm sure if Microsoft attempts anything, the OIN will retaliate big time.
  • by Bruitist ( 987735 ) on Sunday May 13, 2007 @10:03PM (#19108481) Homepage

    In the Red corner, weighing in at 432 pounds we have the one and only R.M.S, speciality move, being R.M.S.
    How about the fact that someone just bought him a katana? [xkcd.com]
  • Initial analysis (Score:1, Informative)

    by Anonymous Coward on Sunday May 13, 2007 @10:18PM (#19108581)
    See scalability.org [scalability.org]. The press coverage appears to be Marketing-by-legal-threats(TM) from Microsoft.
  • by tomhath ( 637240 ) on Sunday May 13, 2007 @10:18PM (#19108587)
    does Microsoft already hve some patent license agreement (presumably some sort of blanket agreement) with IBM to cover them

    Yes and No. When I worked for a big corporation (not IBM) we had an agreement with MS; we could use their patents, they could use ours. But Microsoft made it clear in the agreement that if we used open source software the cross-licensing didn't apply.
  • by Dragonslicer ( 991472 ) on Sunday May 13, 2007 @10:25PM (#19108653)
    Just because Microsoft didn't invent it, it doesn't mean they don't have a patent on it. It only means that the patent office didn't know about lynx when the patent was granted, and the patent hasn't been challenged in court.
  • "Ideas" cannot be patented. Specific implementations of ideas can be.
    AHHHHHHH!!!!!

    Look, if you're going to lump "intellectual property" together* for your politics, you should be aware of the difference between them.

    A trademark is the right to keep anyone else from using a particular name or logo. Like it or hate it, there is only one IBM in the computer world.

    A copyright is the right to control who can make copies of a work of art. You cannot simply take the Lord of the Rings, wrap it as an e-book, and sell it without the permission of the Tolkien estate. You can, however, re-write its story into your own novel. ("Specific implementation" and all that.)

    A patent is the absolute monopoly on a particular idea. Magic: The Gathering came up with the idea of turning cards 90-degrees to mark them as "played", and no one else can use that idea. Period.

    Now, these three have some overlap and blur -- a graphic logo is likely copyrighted, in addition to being a trademark. The individual cards and rulebooks of Magic are copyrighted, in addition to the "tap" being patented. However, they are very distinct things nonetheless -- you can get around copyright with a clean-room implentation, but you can't clean-room a patent. (You can, however, just wait it out.)

    (*: Note that "personal" property includes everything from a slave, to your underwear, to your family company.)
  • by Dun Malg ( 230075 ) on Sunday May 13, 2007 @11:21PM (#19109091) Homepage

    The real question is who has more customers that can be sued for patent infringement. Being a consumer in no way protects you against patent infringement lawsuits.
    What the hell are you talking about? The maker of the product is responsible for the patent violation. How many CrackBerry users had to pay because RIM got hit with a patent infringement suit? NONE, you fool, NONE. The law states that liability for infringement lies with the party who has made, used, sold, offered to sell, or imported the infringing device or product.
  • by dAzED1 ( 33635 ) on Sunday May 13, 2007 @11:22PM (#19109099) Journal
    have you been paying attention? "prior art" invalidates patents.

    If MS sues someone for that particular patent, "prior art" will be shown, and the patent invalidated. It matters not a tiny bit that they have a patent, if the patent is invalid.
  • by Anonymous Coward on Sunday May 13, 2007 @11:30PM (#19109161)
    I think you are confusing patents with copyright. While specific code, i.e. SCO, is copyrightable and could be changed to effect the same thing in a different fashion, patents protect ideas. For example, a screen-saver is a patentable idea. To create a method in which the display shows random or non-random patterns in order to avoid screen burn-in. It would be very difficult to create an alternative to an established idea such as this. So, for all those OSS projects who try to emulate or make similar a working environment to that of the Windows operating systems or Office application suite, there is a good chance that user interface patents are being infringed upon. And considering how often OSS developers visit http://www.uspto.gov/ [uspto.gov] or do a patent search while "creating something new" I think it is very possible that a good number of patents are being infringed, and people should consider legal counsel.

    Now, is this a stunt by Microsoft in order to further some agenda? Time will tell. However in the meantime, it would be wise to explore and understand what options are available to blunt a very real and possible menace to how OSS operates.
  • Re:Big Blue Gorilla (Score:2, Informative)

    by cpt kangarooski ( 3773 ) on Sunday May 13, 2007 @11:33PM (#19109175) Homepage
    Exactly MS probably violates several hundred IBM patents.... Remember They're were writing OS's before Bill Gates parents were born.

    William Gates II was born in 1925. Mary Gates was born in 1929. OSes didn't really come about, AFAIK, until sometime in the 50's. Before that, a computer would only run one program at a time, and it had to do everything needed whilst it was running; having complete access to all the system resources probably helped some.

    No, the previous post wasn't being serious about that, and yes, I'm being pedantic. What of it?
  • by eric76 ( 679787 ) on Sunday May 13, 2007 @11:48PM (#19109283)

    35 U.S.C. 271 Infringement of patent.

    (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

    Note the word "uses". That means that if you use a device that is in violation of a patent, you could be found liable for that use.

    The patent owner can go after the manufacturer of a device infringing his patent, those selling or offering the device for sale, and the end users.

    As I understand it, they couldn't generally collect from everyone involved because that would be double or triple dipping. For example, if the manufacturer settles, then that makes the patent owner whole and absolves the others.

  • by dAzED1 ( 33635 ) on Sunday May 13, 2007 @11:51PM (#19109305) Journal
    H.R.2795 hasn't been passed. [loc.gov] "prior art" is still a viable means of invalidating something. And if MS is going to start leaning on the highly flawed patent "reform" before it even makes it out of committee, they'll likely just be digging the H.R.2795's grave next to their own.

    And even if we switch to "first to file," prior art will still invalidate the patent. Specifically, see section 135 - "Inventor's rights contests" [cornell.edu]

    Or start at the beginning, and patch it with [cornell.edu] the ammendments H.R.2795 would make [loc.gov]

    Will it be substantially easier for MS to abuse patent law under H.R.2795? Absolutely. Will it make "prior art" invalid? Not at all. And, like I mentioned, it's not even out of committee yet ;)
  • Users? I think not. (Score:3, Informative)

    by geekoid ( 135745 ) <dadinportland&yahoo,com> on Sunday May 13, 2007 @11:55PM (#19109341) Homepage Journal
    Really, it's not the users responsibility, it's whomeever violated the patent.

    If the playstation III violated your patents, you go after Sony, not the users. You would never have the suit get passed a judge.

    Bring it MS, I dare you.

    FUD spreading cum stains.
  • by AJWM ( 19027 ) on Monday May 14, 2007 @12:18AM (#19109493) Homepage
    they couldn't generally collect from everyone involved because that would be double or triple dipping. For example, if the manufacturer settles, then that makes the patent owner whole and absolves the others.

    That depends entirely on the nature of the settlement. There was a case few years ago where Timeline settled with Microsoft (some database technology issue), then announced that the deal with Microsoft did not cover end users -- and the courts agreed.
  • by calidoscope ( 312571 ) on Monday May 14, 2007 @12:23AM (#19109535)

    in February 1950, an undistinguished, first-term Republican senator from Wisconsin, Joseph McCarthy, burst into national prominence when, in a speech in Wheeling, West Virginia, he held up a piece of paper that he claimed was a list of 205 known communists currently working in the State Department


    Ironically, McCarthy underestimated the number of Communists working in the state department - the 'true' number derived from Venona intercepts was even higher.


    A few years later a Senator from Massachusetts (initials were JFK) claimed that the Soviet Union had close to 200 missiles ready to launch against the US - the truth was that the Soviets had 6 ICBM's ready by mid-1960. So maybe it is safe to say that Microsoft is to software what Kennedy was to politics?

  • by swillden ( 191260 ) * <shawn-ds@willden.org> on Monday May 14, 2007 @01:01AM (#19109809) Journal

    I had seen the spelling 'cajones' on furniture, and had imputed that it meant 'drawers'.

    Both are right. "Cajón" is the augmented form of "caja", which is box, so it literally means "large box". However, spanish speakers don't really use it that way, if they want to describe a large box they'd say "caja grande", the word "cajón" is really only used for medium to large drawers. Small drawers, like those on a jewelry box or some such, are called by the diminutive form "cajita".

    The various modifier suffixes that can be placed on nouns is one of the coolest features of spanish, IMO. -ón (big), -ote (even bigger), -ito (small, cute, precise), -ejo (big and ugly) ... and others that I can't think of at the moment. You can make nice words like "cojoncitos" and "cojonejos", and there are thousands of really awful puns that can be constructed by noting that one word with a suffix sounds the same (or close to the same) as another word. Spanish is a great language.

  • by codemachine ( 245871 ) on Monday May 14, 2007 @01:04AM (#19109825)
    I think it is about time that some FOSS friendly company started making noise about MS patent violations, without specifying which ones are being violated. Make sure that customers don't feel any safer using MS software than they do using Linux.

    Unfortunately, it seems that nobody wants to rock the boat like that, for fear of the brutal retaliation that MS would provide for them. And MS has already cross-licensed their IP portfolio with many of the companies that they payed off in the anti-trust lawsuits, so they've taken away that avenue of attack.

    Red Hat and Google are the only ones I can think of right now. Red Hat would probably be crazy to try such a stunt, and I'm not sure they're big enough to scare MS or their big customers anyhow. Google has the motive (MS has basically outright stated they want to kill Google), but do they have the resources to fight MS in the IP arena? I'm not so sure.
  • by despisethesun ( 880261 ) on Monday May 14, 2007 @01:48AM (#19110081)
    You have patents confused with trademarks. Patents don't need to be defended unless their validity (in other words, is it unique and unobvious?) is challenged in the first place. Trademarks lapse if trademark violations aren't pursued, but patents are valid until they expire regardless of whether or not you pursue violators.
  • by Ravnen ( 823845 ) on Monday May 14, 2007 @02:57AM (#19110423)

    My pet conjecture is that they are in the process of setting themselves up to switch to something completely different for their next OS.

    I don't believe it will be Linux. It is more likely they will fork their own copy of one of the BSD's, probably FreeBSD, and then port all their own proprietary stuff on top of that.

    In other words, once again, Apple will show them the way.

    Why would Microsoft use FreeBSD for anything? It doesn't have any advantages over the NT kernel, and in fact is less advanced by most measures. It's only with the 2.6 kernel that Linux has become, in most ways, comparable to the NT kernel, and FreeBSD is well behind Linux.

    The real risk to Microsoft is that some other OS becomes as good as Windows. Almost every other OS is a lot cheaper than Windows, most are actually given away freely, so the only reason people buy Windows is because it's better, i.e. supports more hardware, has more applications available, etc. If Linux ever catches up with Windows, everyone will switch to it, since it's free, and half of Microsoft's business will disappear.

  • by jimicus ( 737525 ) on Monday May 14, 2007 @04:33AM (#19110911)
    The SCO case has proven how much staying vague about the actual violations is useful.

    One of the problems with the SCO case is that the litigant is SCO. I can't think of a single live SCO installation which isn't in the process of being migrated to something else. To put it bluntly, they weren't exactly overflowing with credibility to begin with.

    I agree with the GP that this is in essence the latest round in the FUD war - and a rather predictable round at that. IBM may have invented FUD but it's Microsoft who've perfected it. Time will tell how effective it is.
  • by TheRaven64 ( 641858 ) on Monday May 14, 2007 @06:22AM (#19111461) Journal
    It's not quite the clear cut. In the US you are (now) not allowed to claim damages that occurred between first discovering that the patent was being infringed, and taking action. This was introduced to prevent people from waiting until the defendant had more money before suing, rather than letting them know.
  • by muellerr1 ( 868578 ) on Monday May 14, 2007 @10:27AM (#19113681) Homepage
    In Ubuntu you change your screen resolution by clicking the System->Preferences->Screen Resoultion menu option and choosing your new resolution from the dialog that pops up

    Unless your new monitor can handle more than 1280x1024 or is widescreen. Then it's back to editing obscure text files.
  • Nothing to see here (Score:5, Informative)

    by TekPolitik ( 147802 ) on Monday May 14, 2007 @08:55PM (#19124197) Journal

    ...(Microsoft SVP and general counsel) Smith was having Microsoft's lawyers figure out how many of its patents were being infringed by free and open-source software. Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them... But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

    Apparently Smith didn't pay much attention in his equity classes in law school (not surprising since most people find equity boring and difficult - I on the other hand topped my year so :-P to Smith). This behaviour is going to give rise to a proprietary estoppel against Microsoft, and he has now publicly stated the hardest things a defendant would have to prove to get the estoppel. This is just about rule #1 of equity - if you know somebody is violating your property rights, and you let them expend time, effort and resources building something in violation of those rights without them having knowledge of the breach of your rights, the courts will not let you enforce your rights against those people or anybody who claims through them.

    It would be a different matter if Microsoft had no knowledge of the breach, but having investigated it and found the breach, if they don't tell the projects affected what the alleged breach is in fairly short order, they are not going to be able to enforce their rights at all.

    Even if he did not pay a lot of attention in his equity classes it seems unlikely Smith would not have some awareness of this. This suggests to me that Microsoft have no intention whatsoever of using the patents to pursue open source projects or even users who are building businesses based around open source products. If they did intend to do this, they would give specific notice. This leaves them with only intimidation as a strategy for exploiting their patents against open source.

    It is a shame we have no examples of another company that turned to using unspecified intellectual property violations as an intimidation strategy against open source. Such an example might give us an indication of the ultimate result.

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