Microsoft Details FOSS Patent Breaches

CptRevelation writes "Microsoft has released more detailed information on the patents supposedly in breach by the open-source community. Despite their accusations of infringement, they state they would rather do licensing deals instead of any legal action. 'Open-source programs step on 235 Microsoft patents, the company said. Free Linux software violates 42 patents. Graphical user interfaces, the way menus and windows look on the screen, breach 65. E-mail programs step on 15, and other programs touch 68 other patents, the company said. The patent figures were first reported by Fortune magazine. Microsoft also said Open Office, an open-source program supported in part by Sun Microsystems Inc., infringes on 45 patents. Sun declined to comment on the allegation.'"

No new details

[NakNomik]

This is still old news. There are no new details in this article that were not already present in the one Slashdot reported on Sunday (the CNN Money article, http://money.cnn.com/magazines/fortune/fortune_arc hive/2007/05/28/100033867/index.htm?section=money_ latest [cnn.com])

Underway

[Mateo_LeFou]

Just starting out, but go here
http://twoclick.org/unnamed/ [twoclick.org]

Re:E-MAIL?????

[Timesprout]

They said 'EMail programs', not email itself.

mmm... worms

[Mateo_LeFou]

Sorry to keep plugging myself, but I really want this to take off and pling-style sites need users to go
twoclick looks at patents in the GUI category:

http://twoclick.org/unnamed/index.php?category=GUI [twoclick.org]

Re:Nothing new here

[Fordiman]

Yeah. Microsoft, Look and Feel is not actionable - otherwise Apple would have had your ass years ago. Drop those claims first.

Moving along: detail the rest of 'em, and we'll give a shit. No seriously. You can't just say, "You infringe on 25 of my patents. Can I have my licensing fee now?"

It doesn't work like that.

Of course, the reason MS won't name names is that they want their license fees. They don't want Linux and its related projects going, "Ok, we'll code around that, thanks."

How is this detailed?

[seebs]

I didn't see any detail in this article that wasn't in the previous one.

Re:Oh microsoft

[Kadin2048]

It doesn't matter if they invented it, only if they patented it. Which is what's wrong with the whole system.

Not true. The U.S. patent system is based on a "first to invent" doctrine, not "first to file."

Applying for a patent often serves as proof that you had indeed invented something at a certain time (at least the filing date), and creates a bit of a barrier for someone else to prove that they invented it earlier (since they'd need to conclusively demonstrate that they had done it before you had), but it's not unheard of or even especially uncommon historically.

That's the whole idea behind 'prior art' in the U.S.: if you can demonstrate that you, or somebody else, had invented something and published it before the person who got the patent for it did, then the patent can be ruled invalid.

There are some (IMO, really poorly thought-out) proposals that would change the U.S. system to a "first to file" one, which is more common throughout the rest of the world, but it hasn't happened yet.

Re:First to file

[LionMage]

first to file is the rule

Not in the United States. [wikipedia.org] In the U.S., first-to-invent is the rule, not first-to-file.

Re:Quick !! Lets examine and change them all !!

[richie2000]

If they ever institute software patents here I will continue to ignore them as a form of civil disobedience.

You are aware that the EPO has already granted [ffii.org.uk] tens of thousands [216.239.59.104] software patents, right?

Re:Oh microsoft

[andy314159pi]

You forgot Red Hat which now has some resources.

Short answer: yes

[Mateo_LeFou]

MS has 155 patents with the word "User Interface" in the title. Have a look:

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PT O2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-b ool.html&r=0&f=S&l=50&TERM1=Microsoft&FIELD1=ASNM& co1=AND&TERM2=user+interface&FIELD2=TI&d=PTXT [uspto.gov]

What sucks is that yesterday they only had 151...

Re:Correction is needed

[Delkster]

Not all patents can be worked around without removing functionality, because some of the patents are either defined in such a way or simply cover such functionality that it can't be done in any other ways than the ones the patent covers.

It's called the doctrine of laches

[Anonymous Coward]

http://www.lectlaw.com/def/l056.htm [lectlaw.com]

LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

Laches is similar to 'statute of limitations'

Further reading

[Kadin2048]

Probably relevant articles:

Apple Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994), aka the "Look and Feel case" on Wikipedia [wikipedia.org], and the actual ruling by the 9th Circuit Court of Appeals [earthlink.net].

The MIT AI Lab has a fairly good introduction [mit.edu] to the basis for the current U.S. software IP system, including what elements are typically protected by copyright and which by patents. (Basically: "Expression" = copyright; "idea/implementation" = patent, "concept" = (hopefully) neither.)

Re:Oh microsoft

[dAzED1]

examples? Please filter out all examples from when the customers knew specifically what patents were being violated, and how, yet bought the product anyway. Suing the customer in that scenario is defined under civil law.

That's the crux of this, really - because of the lawsuit-happy world we live in, people have gotten the idea that you can actually sue anyone for anything; you can't. You have to cite what civil law was violated, how it was violated, when it was violated, etc.

So yeah - give me an example that remotely compares to this situation. If examples exist, I sincerely would love to see them. Up to now, all I've done is read the Federal Rules for Civil Procedure [cornell.edu], and done research. I am certainly not a lawyer, but I'm also not subscribing to the Great FUD Machine. Seems like the fear of FUD is stronger than the FUD itself these days on /.

Re:Apple is no friend of Linux

[aaarrrgggh]

A quick perusal of Apple's site suggests otherwise. Refer to This link [apple.com] for the following accolades of Free Software:

The power and simplicity of Mac OS X Server begin with a UNIX-based foundation built around the Mach microkernel and the latest advances from the open source BSD community.

nstead of developing proprietary technologies, Apple has embraced the best open source projects, such as Apache, Samba, OpenLDAP, Kerberos, Postfix, Jabber and SpamAssassin.

Granted, Apple wants to sell their software. They do however rely on Open Source software to help create a total solution, which is about the only way for them to compete with MS. The only "cut" on Linux I saw was a reference to the complexities of Linux... which in my book is a fair enough comment relative to their target audience.

Re:Oh microsoft

[danbert8]

Ford can't sue Chevy... Chevy isn't a company, it's a brand. Ford would sue General Motors.

Re:Unenforceable if it's Incomprehensible

[glas_gow]

Hate to prove myself correct, but I found this at the foot of the patent:

In conclusion, the present invention enables users to select elements in a GUI quickly, with minimal processor computations, using an element selection perimeter or "lasso."

Re:Short answer: yes

[dfoulger]

Interesting point, but its a little worse than you think. I count some 2500 patents [freepatentsonline.com] in which Microsoft is the assignee and the term "user interface" appears somewhere in the patent.

The good news:

• IBM has at least 6300 patents [freepatentsonline.com] with the words user interface in them.
• Sun has over a thousand more [freepatentsonline.com].
• Xerox, which really got the ball rolling on user interface patents, has 2000 plus patents [freepatentsonline.com] that refer to user interfaces.

The somewhat wierd news: Apple has only 600 or so patents [freepatentsonline.com] with the words user interface in them. Of course all of these players together account for less than a sixth of all the patents (currently over 70,000 [freepatentsonline.com] that include the words "user interface".

Re:Question about Timeliness

[Anonymous Coward]

Laches [wikipedia.org] hardly ever works for patent defense, because, as an affirmative defense, the defendant has to prove it, and the plaintiff can always come up with good excuses for their delay such that they were researching or evaluating the infringement over a very long period of time. So it's usually impossible to prove in US courts.

Re:Short answer: yes

[Mateo_LeFou]

I think "user interface" *anywhere in the patent makes the results overwhelming. But I also think the title-only search was too strict. Thanks for the freepatentsonline link, it's a lot faster than uspto's. Here are the 408 with that term in the Abstract
http://www.freepatentsonline.com/result.html?p=1&e dit_alert=&srch=xprtsrch&query_txt=AN%2FMicrosoft+ and+ABST%2F%22user+interface%22&uspat=on&date_rang e=all&stemming=on&sort=chron&search=Search [freepatentsonline.com]

PS: come by my site (www.twoclick.org/unnamed). Sounds like you're pretty familiar with this stuff

Apple v. eMachines

[Kadin2048]

The Apple vs eMachines dispute was a more straightforward trade dress [wikipedia.org] case than Apple vs Microsoft. It comes from some portions of the Lanham Act that allow trademark-like protections for distinctive design elements of a product.

If you take a look at the eOne [wikipedia.org], it's pretty blatantly iMac-like; I kinda wonder what their lawyers were thinking when they green-lit that.

At any rate, that suit, like most things that Apple seems to get involved in, was eventually settled out of court [com.com], and no precedent resulted. But we can infer that eMachines didn't feel like they were winning, because the eOne disappeared quickly afterwards. (It didn't help that the thing never sold well, either, or that it was offered exclusively through Circuit City.)

Re:It's dead Jim

[Pausanias]

This is only partly true. I am not a big fan of mono (I always make sure not to install anything depending on it); however, it seems that only the parts not submitted for standardization (ASP.NET etc) are liable to patent claims. The other parts, if they are approved as standards, will be non-patentable.

Unfortunately for mono, the parts that could be liable to patent claims are the parts that allow Windows interoperability. Given that interoperability is the chief claim to fame of .net, this seriously reduced the attractiveness of this platform.

From wikipedia: [wikipedia.org]

The base technologies submitted to the ECMA, and therefore also the Unix/Gnome-specific parts, may be non-problematic. The concerns primarily relate to technologies developed by Microsoft on top of the .NET Framework, such as ASP.NET, ADO.NET and Windows Forms, i.e. parts composing Mono's Windows compatibility stack. These technologies are today not fully implemented in Mono and not required for developing Mono-applications. Not providing a patented capability would weaken the interoperability, but it would still provide the free software / open source software community with good development tools, which is the primary reason for developing Mono. This has been summed up by Richard Stallman[5]:

Mono is a free implementation of Microsoft's language C#. Microsoft has declared itself our enemy and we know that Microsoft is getting patents on some features of C#. So I think it's dangerous to use C#, and it may be dangerous to use Mono. There's nothing wrong with Mono. Mono is a free implementation of a language that users use. It's good to provide free implementations. We should have free implementations of every language. But, depending on it is dangerous, and we better not do that.

Re:The Camerons are spot on:

[colinrichardday]

Toohey was in the Fountainhead, not Atlas Shrugged. You also could have
mentioned that Rand wrote, "You cannot patent an idea,"

The way menus and windows look and feel?

[aztektum]

So if I install an Aqua theme, then there isn't a problem right?

Come fuckin' on. Any patents that fall in that category would cover any modern OS. Drop down menus and "windows" were around before Windows.

They keep saying Linux. Last I checked nearly any window manager, e-mail client and many other applications that run on Linux run on BSD as well. However they repeat "Linux, Linux, Linux...!" to steer people from Ubuntu Linux, Debian Linux, Slackware Linux. How much more obvious a FUD campaign can they make this?

Show the world your code MS. There has to be a little bits of GPL crawling around in there somewhere.

Look and feel. Give me a break.

Re:What about PR?

[nizo]

Why Microsoft won't name the patents, straight from the horse's mouth (go here [fortune.com] for the blog article):

The question I anticipate that most readers will want to ask (and that isn't really answered in the feature story) is: Why doesn't Microsoft identify the specific patents and explain what specific aspects of free software infringe them. I did ask Gutierrez that question, and here was his answer: "We do. But in private conversations in the process of licensing discussions with companies that are looking in good faith for ways of resolving the situation." In those contexts, he says, "we walk through a number of exemplary patents and go as deep as they want us to go. Our experience has been every time we've done that, it doesn't take companies a long time to figure out that there is an issue here."

Why won't he do the same thing in public? "There are a number of legal reasons why companies don't do that. No company does that. IBM (IBM) doesn't do that. HP (HPQ) doesn't. Fujitsu (FJTSY.PK) doesn't. For a number of practical reasons. Once you've made that statement from a public perspective, anybody in the world can go to court and ask for a declaratory judgment. That would spur potentially hundreds or thousands of lawsuits around the world, or reexaminations of patents around the world. Even if they're perfectly good patents, it would create an administrative nightmare."