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Linus Responds To Microsoft Patent Claims 496

Posted by kdawson
from the just-FUD dept.
An anonymous reader writes "Linus Torvalds has a sharp retort to Microsoft executives' statements in a Fortune article that Linux violates 235 Microsoft patents. In an emailed response to InformationWeek's Charlie Babcock, Torvalds writes: 'It's certainly a lot more likely that Microsoft violates patents than Linux does.' He added: 'Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousand of really "fundamental" patents... The fundamental stuff... has long, long since lost any patent protection.'" Torvalds also commented on Microsoft's stated intention not to sue Linux users: "They'd have to name the patents then, and they're probably happier with the FUD than with any lawsuit."
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Linus Responds To Microsoft Patent Claims

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  • Sad or Telling? (Score:3, Interesting)

    by u-bend (1095729) on Tuesday May 15, 2007 @03:17PM (#19136027) Homepage Journal
    Is it kind of sad that such retorts are necessary? Or is it telling, that M$ is continues to resort to such SCO-like tactics?
    • Re:Sad or Telling? (Score:5, Insightful)

      by smilindog2000 (907665) <bill@billrocks.org> on Tuesday May 15, 2007 @03:21PM (#19136109) Homepage
      That was a funny article. Linus is probably right... Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.
      • by smilindog2000 (907665) <bill@billrocks.org> on Tuesday May 15, 2007 @03:23PM (#19136149) Homepage
        Oh! And we should keep the list secret!
      • Re:Sad or Telling? (Score:5, Interesting)

        by MightyMartian (840721) on Tuesday May 15, 2007 @03:38PM (#19136417) Journal
        I think we all know that the kernel is probably safe; except for some of the drivers. I'll wager that Microsoft is eying FAT and NTFS. Still, it's awfully easy to fix that. Just distribute a kernel without those drivers in the source, and just let someone outside the US distribute the patches, compiled modules, as well as compiled kernels. Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?

        The problem here is not that MS would ever dream of going to court, it's that the FUD could be very effective at slowing adoption. I suspect that if anything, it's OpenOffice that would feel the wrath of being dragged into court. Going after the kernel is ludicrous, and would likely turn up absolutely nothing.
        • Re: (Score:3, Interesting)

          by rainman_bc (735332)

          I'll wager that Microsoft is eying FAT and NTFS
          I wouldn't be surprised if they've somehow tried to patent SMB/CIFS [wikipedia.org] also... (Which incidentally is shipped with SCO Unix also.)
          • Re:Sad or Telling? (Score:4, Insightful)

            by MightyMartian (840721) on Tuesday May 15, 2007 @04:19PM (#19137113) Journal
            I suspect that Samba would be largely immune, as a good chunk of it comes from the olden days of the IBM-Microsoft alliance, and thus is likely under IBM's shield. Where Samba could get into real trouble is once version 4 is production-ready and people start implementing Active Directory networks on *nix boxes. Then you'll see the shit hit the fan, because I'll wager Microsoft has stuffed its portfolio full of AD-related patents.
          • Re: (Score:3, Interesting)

            by Creepy (93888)
            I posted something about this on the last thread - SMB/CIFS has a couple of obsolete Microsoft patents that Samba implements, but not as documented in the patents themselves (they would not work in a UNIX-like OS). The main part of Samba is based on specs designed by the Storage Industry Network Association, which MS used more as a guideline than how they implemented it. Here's an article [vnunet.com] about it, and also see Samba's web site.

            The only other patent I know of on CIFS is not owned by Microsoft, it's a Cisc [patentdebate.com]
        • Re:Sad or Telling? (Score:4, Interesting)

          by cayenne8 (626475) on Tuesday May 15, 2007 @04:11PM (#19136999) Homepage Journal
          "Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?"

          Is compatibility even an issue here? I thought you could reverse engineer or the equivalent thereof, to make systems compatible. Isn't this even one of the tennents of the DMCA? I know that isn't really patent related, but, is it against the patent law to interoperate with another system?

        • Re: (Score:3, Interesting)

          by kimvette (919543)
          Not practical, considering that every USB "drive," flash card, and external drive ships Fat32 formatted. However, FAT is >25 years old now, so any patents they MIGHT have on it are either long expired or invalid.
      • by John Miles (108215) on Tuesday May 15, 2007 @05:00PM (#19137749) Homepage Journal
        Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.

        With enough eyes, all patent violations are visible. Chances are, many large companies that hold patents that MS infringes upon don't even know the infringement is happening. If users were to discover and publicly document a few thousand tidbits such as, "Windows Vista's user-account control database clearly violates IBM's patent 1,559,664 of June 29, 1997," why, companies like IBM would almost be obliged to sue MS for damages.

        I like this idea a lot. It's elegant as hell, because it takes advantage of the fact that Microsoft has more to lose than anyone from software patents.
      • by OldHawk777 (19923) * <adelovantNO@SPAMverizon.net> on Tuesday May 15, 2007 @06:38PM (#19139035) Journal
        Also, M$ is possibly seeking mutual indemnification from theft of property prosecution. If M$ can press the Linux Foundation and FSF-GPL+ to provide such a settlement, then they are safe from being financially raped, forced to release M$ products to F/LOSS-GPL, or destroyed by forcing removal of all OSS-GPL copyrights protected code from M$ products.

        So, who will be the first to flinch in this obvious game of chicken/standoff. I suspect, that M$ is looking to be another dickless empty SCOrotum.

        I ain't good enough with code, but I will continue to put some loss money on the Linux Foundation, FSF-GPL, EFF .... It is a very good idea to start loading the evidence weapon that will put a through&through hole in M$. I mean we may as well help them commit economic suicide. Work with the Linux Foundation folks ... I will be sending them a couple hundred more $ this year for the TEK-War. I hope I can get a hat that says I supported the F/LOSS troops in battle against the M$techno-fascist.

        !HAVEFUN!
      • Re: (Score:3, Funny)

        US patent #8324251 : From time to time the currently operating application shall cease working for no apparent reason. The typical means of exit shall be a crash; at this time nothing useful is to be written to the event log. A crash dump may be offered as if to taunt the user 'if you had the source you could fix this yourself, nyaah'.
    • Re:Sad or Telling? (Score:5, Interesting)

      by cyphercell (843398) on Tuesday May 15, 2007 @03:23PM (#19136143) Homepage Journal
      I hope that it's telling, after all Microsoft is essentially following tactics from IBM a company that is not, primarily in the software industry. They have essentially hired IBM's patent lawyer, Marshall Phelps [slashdot.org]
    • by WrongSizeGlass (838941) on Tuesday May 15, 2007 @03:24PM (#19136153)
      Just remember kids that you can't spell Microsoft without SCO (and MIROFT).
    • that Microsoft actually has a patent on computerized retorts
    • Re:Sad or Telling? (Score:5, Interesting)

      by Anonymous Coward on Tuesday May 15, 2007 @03:46PM (#19136547)
      Is it kind of sad that such retorts are necessary?

      Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

      I suspect that lots of organizations were in such a boat and Microsoft played their cards accordingly.
      • Re:Sad or Telling? (Score:5, Insightful)

        by flyingfsck (986395) on Tuesday May 15, 2007 @04:18PM (#19137103)
        Good - your company obviously wasn't serious about open source software anyway. Note that Redhat pledged to indemnify their users, so your powers that be were not really serious about anything.
      • Re: (Score:3, Insightful)

        You need to change jobs, because the only damage done here, is to your company.

        For those companies who do get Open Source, this is latest round of Microsoft FUD is nothing more than, to joke about during lunch time.

        • Re:Sad or Telling? (Score:5, Insightful)

          by Petersko (564140) on Tuesday May 15, 2007 @05:36PM (#19138265)
          "You need to change jobs, because the only damage done here, is to your company."

          He works for a large financial company - one large enough to have its own law department. While eliminating open source software from their infrastructure is certainly unreasonable, it's unlikely that they'll be "damaged" by it. There are plenty of good closed-source solutions out there.

          As for having to change jobs, well, changing jobs on the basis of software morality (a dodgy proposition at best) might be reasonable in a very select few markets. Lots of people can't simply throw a tantrum and quit just because they don't get their way.
          • I use to work for a big big financial company. They had lots of stupid policies, like I.E. only. (wouldn't even allow us to install firefox). google groups was banned because people could browse hacking groups (I am not kidding ).

            And yet they were hit every time a Microsoft worm was on the loose. They spent countless hours recovering from these break outs. So if you choose to close your ears and eyes, and insist on using microsoft only products, then you CAN have damages.

          • Re: (Score:3, Insightful)

            by 1lus10n (586635)
            No, you change jobs when your boss tells you to use a screw driver to hammer nails into place. Believe it or not, microsoft and linux dont always live in the same space. Linux/unix is much more well suited to enterprise backends and massive farms. MS is better for homogenized workstation environments and small workgroup installs where depth of knowledge isnt as important as availability of knowledge.
      • Re:Sad or Telling? (Score:5, Insightful)

        by Anonymous Coward on Tuesday May 15, 2007 @04:44PM (#19137527)

        Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.


        I bet most institutions would be dead in the water if this advice were taken quite literally, as Microsoft used BSD code in there TCP/IP stack for a long time. Goodbye 95/98/NT/2000. Even if your not totally literal, there are tons of open source stuff that every company makes use of everyday, even if it doesn't register in the minds of the layman.

        • Perl scripts that make reports? Gone, you can't run the reports without the open source interpreter.
        • MySQL/Postgresql databases? Just because you're using Access on the front-end doesn't mean Access as the data store.
        • Email? Even if you're running Exchange, you might still be protected with a hardware anti-spam device, which often runs a modified version of spam-assassin.
        • Web filters/proxies? Again, most hardware based filters run off of an open source backend, in this case Squid.
        • Web servers?
        • File servers?
        • Even not being able to use FireFox would upset some VIP somewhere, enough to get the decision reversed.

        I'm sure there are more, but I believe that if all the admins of the world who got this request complied, Microsoft would be lynched in a heartbeat.

        In fact, there should be a "Open Source or Die!" day where all machines that run open source software turn off. The inability to do anything would boggle the corporate mind.
        • Re:Sad or Telling? (Score:4, Informative)

          by SEAL (88488) on Tuesday May 15, 2007 @05:10PM (#19137891)
          I bet most institutions would be dead in the water if this advice were taken quite literally, as Microsoft used BSD code in there TCP/IP stack for a long time. Goodbye 95/98/NT/2000.

          Microsoft to this day, still has many tidbits of BSD code sprinkled throughout its Windows and Visual Studio codebases. I used to work on the Visual Studio team, and I'm still friends with a number of the devs over there. You can always do the classic:

          strings c:\windows\system32\ftp.exe |grep Regents

          and be treated to...

          @(#) Copyright (c) 1983 The Regents of the University of California.

          (note this is still present, even in Vista)
      • Re:Sad or Telling? (Score:5, Insightful)

        by vertinox (846076) on Tuesday May 15, 2007 @04:56PM (#19137709)
        I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

        Could you give me a hint of which financial company? I'm worried that I'm keeping my nest egg funds in a company who lets idiocy run its course without actually checking the facts. I suppose such a company would likely panic for any non-serious market trends which leads to me being poor because someone freaked out over something that was simply not true.
      • you don't get it (Score:3, Insightful)

        by nanosquid (1074949)
        They're not basing that notice on any actual legal risk, they're just happy that they have found a good excuse not to have to learn something other than Microsoft Word.
      • Re:Sad or Telling? (Score:4, Interesting)

        by Dan Ost (415913) on Tuesday May 15, 2007 @05:06PM (#19137845)
        Why not take some time to write a well reasoned response that you can send up the management chain and to the legal department. Point out how your company is currently benefiting from open source and how painful it would be to replace the open source currently in your infrastructure.

        This is an opportunity to educate. Don't waste it.
      • Re:Sad or Telling? (Score:4, Insightful)

        by bl8n8r (649187) on Tuesday May 15, 2007 @06:00PM (#19138569)
        I work for a large organization where the lawyers are seasoned and don't run amok from simple allegations. We have a large installation of solaris and linux hardware with some Redhat clustering coming down the road for Oracle. The plans are not changing until/if/when the legal system determines the Microsoft allegations are founded and laws have been broken. Until then, Microsoft is, as usual, probably full of shit. As I suspect your post is.
    • by Anonymous Coward on Tuesday May 15, 2007 @04:15PM (#19137053)
      It's time for Linux contributors to start a class action (defamation) lawsuit. Given the number of contributors, I'd say we're looking at several billion in damages. Maybe then we'd see some details.
  • by Anonymous Coward on Tuesday May 15, 2007 @03:18PM (#19136059)
    Please note that this article violates 207 Microsoft patents. Anyone commenting on it will be violating a further 703 patents. Except me.
  • by Lord Ender (156273) on Tuesday May 15, 2007 @03:18PM (#19136061) Homepage
    Can someone please explain to me how software patents "promote science and the useful arts?"

    Wouldn't a patent law which does NOT promote science and arts be unconstitutional? Or am I misreading the constitution?
    • by koreth (409849) * on Tuesday May 15, 2007 @03:29PM (#19136259)

      Software patents that were reviewed by qualified examiners and only granted if they were truly novel and non-obvious would promote science and the useful arts. I think far fewer people would have trouble with the concept if that were the reality -- in that case the intended bargain (the patent makes public the details of an idea that nobody else would have thought of on their own) would apply.

      But the "grant first, ask questions later" approach of today's patent office, where one can patent an implementation that any programmer of above-average skill might come up with when presented with the same problem, means that we'd be better off with no software patents at all.

      I'd be happy with either fixing the examination process or dumping software patents.

      An example of a software patent that would reasonably be granted under a good examination regime, even though it did irk a bunch of people back before it expired, would be the RSA patent. That was not obvious to 99% of the skilled practitioners of the art until it was published. (And even now I expect most programmers have at most a high-level understanding of why it works, me included.)

      • Re: (Score:3, Insightful)

        by MightyMartian (840721)
        The problem is that, unlike actual inventions, a patent troll can quickly submit hundreds of software patents. Nowadays, you've got everybody and their dog, from Microsoft to Sun to Amazon applying for patents. The system, which has long had problems handling the load of more traditional patents, simply breaks down. The amount of money that it would require to have each software patent reviewed would be staggering. Do you think having "patent pending" is any better security than "patent # 232437442"?
    • by Anonymous Coward on Tuesday May 15, 2007 @03:31PM (#19136293)
      No.

      Software is obsolete in 5-10 years.
      A patent last for 20 years.
      Copyright lasts for 95 years.

      When the incentive monopoly lasts well beyond the life of the invention, the effect is obviously not promoting innovation. The effect is innovation suppression and wheel reinvention.
  • by symbolic (11752) on Tuesday May 15, 2007 @03:19PM (#19136065)
    I'm not clear how IBM could own thousands of patents back in the 1960s- at that time it was clearly understood that software is a non-patentable "invention". Oh how I wish this common sense would be restored.
  • by markov_chain (202465) on Tuesday May 15, 2007 @03:19PM (#19136069) Homepage
    "Don't you think that if Microsoft actually had some really foolproof patent, they'd just tell us and go, 'nyaah, nyaah, nyaah!'"
  • by InfiniteSingularity (1095799) on Tuesday May 15, 2007 @03:20PM (#19136087)

    It looks like Linus has been reading Slashdot the past couple of days.

  • by dotpavan (829804) on Tuesday May 15, 2007 @03:21PM (#19136115) Homepage
    "So what's my view on this interview in Fortune - in which one of Sun's business partners claims the open source community is trampling their patent portfolio?

    You would be wise to listen to the customers you're threatening to sue - they can leave you, especially if you give them motivation. Remember, they wouldn't be motivated unless your products were somehow missing the mark.

    All of which is to say - no amount of fear can stop the rise of free media, or free software (they are the same, after all). The community is vastly more innovative and powerful than a single company. And you will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities - or the Fortune 500 - that have found value in the wisdom of the open source community. Open standards and open source software are literally changing the face of the planet - creating opportunity wherever the network can reach.

    That's not a genie any litigator I know can put back in a bottle."

    Source: http://blogs.sun.com/jonathan/entry/what_we_did [sun.com]

  • by umStefa (583709) on Tuesday May 15, 2007 @03:21PM (#19136117) Homepage
    The more we post articles about how Microsoft is claiming patent violations, the better it is for Microsoft. This is simply a case of the more your story is in the news, the better the results for you. MS will NEVER sue anybody using Linux because the consequences of MS losing that case would be disastrous. Instead they will simply try and make managers (who in most organizations outside the tech sphere are technologically illiterate) make the following connection:

    Linux = Patent Violation = Unreliable

    Instead the Linux community should turn the tables on Microsoft and find a patent that MS has broken and feed the media the story that Windows users are going to get sued, hence making getting sued for using any OS a null point.

  • by stites (993570) on Tuesday May 15, 2007 @03:22PM (#19136135)
    "Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really 'fundamental' patents," Torvalds said in a response to questions submitted by InformationWeek. But he doesn't like any form of patent saber rattling. "The fundamental stuff was done about half a century ago and has long, long since lost any patent protection," he wrote.

    I worked for IBM developing operating systems during the 1960s. Software patents did not exist at the time and IBM patented no software. However there is a huge amount of unpatented prior art from about 1963 onward that can be used to invalidate any operating system fundamentals patents claimed by Microsoft.

    ------------------
    Steve Stites
  • by dfoulger (1044592) on Tuesday May 15, 2007 @03:25PM (#19136177) Homepage

    From the Novell press release [novell.com], issued yesterday:

    "We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."

    The commentary on Groklaw [groklaw.net] is interesting as well

  • by abes (82351) on Tuesday May 15, 2007 @03:25PM (#19136183) Homepage
    Just for clarity's sake, it is probably about the time to start using the GNU/Linux nomenclature, not to mention actually differentiating between Linux as an operating system, and X Window running on top of it, with its various window managers.

    I doubt M$ can claim that GNU is breaking any patents. As Linus as stated, its hard to imagine what internals of Linux that could intruding on a M$ technology, except maybe the Fat32 and NTFS compatability layers.

    I remember reading one of the previous reports on this issue, and one of the claims was that user interface designs for things like the web browser and email clients were guilty. I was under the impression, when M$ stole from Apple (or when Apple stole from Xerox) all of this got settled.. It certainly strikes me funny M$ suing another company for stealing the UI. Besides the fact that the original IE looks a lot like Netscape's browser, and I'm pretty sure there were email clients before Outlook. Or the fact that Word looks pretty simlar to that of Wordperfect.

    M$ might be right about the infringement .. they might actually have those patents. Whether they are enforcable may be a different matter. Especially considering the plethora of prior art. Except for Clippy and Bob, I'm not sure what they've done that is original.
    • by GaryPatterson (852699) on Tuesday May 15, 2007 @05:25PM (#19138127)
      Minor nitpick - the phrase or when Apple stole from Xerox should be more correctly written as or when Apple licenced UI IP from Xerox.

      Although it makes a good, dramatic story, the one about Apple stealing the GUI from Xerox was never true. Xerox sued for more money when they realised what they'd given away, but there was a licence in place and Xerox profited from the Apple shares it was given.

      I've always thought that the story was put about by Microsoft apologists, keen to muddy the water on the Microsoft-Apple UI lawsuit. Now it's taken on a life of its own, and people just assume it's true.
  • by digitalderbs (718388) on Tuesday May 15, 2007 @03:25PM (#19136185)
    This is an innocent question. If the OSS community is ready to debunk these patents, do we really need Microsoft to reveal which of the 235 patents/infringements they're talking about? Couldn't we start a site/database that organizes all of Microsoft's patents and start documenting prior art and such for each. The patents themselves aren't hidden :

    Microsoft's patents [uspto.gov] (6723 patents)
    Microsoft's UI patent [uspto.gov] (155 patents)
    (for example)

    Why not start debunking the FUD to prove how spurious their claims are? Is it because this would be too much work? (Admittedly, 6723 >> 235)
    • Let them show it (Score:5, Insightful)

      by WindBourne (631190) on Tuesday May 15, 2007 @03:58PM (#19136735) Journal
      This is the same exercise that was done with SCO. In fact, MS was probably wanting to see a trial run at this, to know what pitfalls they were going to have. Now, they have an idea of what to avoid. SCO's big downfall was having the patents outed. Once that happened, the community went to work on it and has destroyed SCO.

      Why not debunk it? Nothing to debunk until they play their cards. They are being told to show cards after a call, and they want more rounds of betting. That is normally a bluff.
  • If it could it would (Score:4, Interesting)

    by Recovering Hater (833107) on Tuesday May 15, 2007 @03:27PM (#19136215)
    But Microsoft can't actually bring the heat on any of the claims. For example: Gutierrez also said Microsoft is not likely to publicly list which specific patents it believes are infringed upon by open source software. "We're not going to have a discussion publicly with that level of detail," he said.

    It seems to me that it is just more noise from a blowhard company that is losing steam in the arena of operating systems. Sound and fury signifying nothing. Too bad the general public won't recognize it for what it is.

    • Re: (Score:3, Insightful)

      by tjr (908724)
      If they aren't going to discuss it publicly, then who exactly are they going to discuss it with privately?
    • Re: (Score:3, Interesting)

      by init100 (915886)

      "We're not going to have a discussion publicly with that level of detail," he said.

      This and other similar quotes were what turned on my FUD warning light. The fact that they don't want to be specific is quite telling. They just want a dark cloud to hang over Linux, so that people wouldn't look that way when they are disappointed by Microsoft's latest offering.

      I know MS trolls and fanboys won't like this, but the fact remains: If Vista and Office 2007 were booming and replacing Linux and other F/OSS in the marketplace, why care about it at all? Why risk their in many circles very posit

  • Show the proof! (Score:5, Informative)

    by leuk_he (194174) on Tuesday May 15, 2007 @03:28PM (#19136243) Homepage Journal
    or loose the rights for your 1 billion dollar suit!

    also people have repeatable and publicly been requesting that microsoft identify what patents they think are being infringed. M$ should tell them or loose the right to get remedies.

    35USC287:
    TITLE 35--PATENTS
    PART III--PATENTS AND PROTECTION OF PATENT RIGHTS
    CHAPTER 29--REMEDIES FOR INFRINGEMENT OF PATENT, AND OTHER ACTIONS
    Sec. 287. Limitation on damages and other remedies; marking and notice.

    says "(3)(A) In making a determination with respect to the remedy in an
    action brought for infringement under section 271(g), the court shall
    consider-- (i) the good faith demonstrated by the defendant with respect to
    a request for disclosure, ...
    (B) For purposes of subparagraph (A), the following are evidence of
    good faith:
    (i) a request for disclosure made by the defendant;
    (ii) a response within a reasonable time by the person receiving
    the request for disclosure; and
    (iii) the submission of the response by the defendant to the
    manufacturer, or if the manufacturer is not known, to the supplier,
    of the product to be purchased by the defendant, together with a
    request for a written statement that the process claimed in any
    patent disclosed in the response is not used to produce such
    product.

    The failure to perform any acts described in the preceding sentence is
    evidence of absence of good faith unless there are mitigating
    circumstances. Mitigating circumstances include the case in which, due
    to the nature of the product, the number of sources for the product, or
    like commercial circumstances, a request for disclosure is not necessary
    or practicable to avoid infringement.
    (4)(A) For purposes of this subsection, a ``request for disclosure''
    means a written request made to a person then engaged in the manufacture
    of a product to identify all process patents owned by or licensed to
    that person, as of the time of the request, that the person then
    reasonably believes could be asserted to be infringed under section
    271(g) if that product were imported into, or sold, offered for sale, or
    used in, the United States by an unauthorized person. A request for
    disclosure is further limited to a request--
    (i) which is made by a person regularly engaged in the United
    States in the sale of the same type of products as those
    manufactured by the person to whom the request is directed, or which
    includes facts showing that the person making the request plans to
    engage in the sale of such products in the United States;
    (ii) which is made by such person before the person's first
    importation, use, offer for sale, or sale of units of the product
    produced by an infringing process and before the person had notice
    of infringement with respect to the product; and
    (iii) which includes a representation by the person making the
    request that such person will promptly submit the patents identified
    pursuant to the request to the manufacturer, or if the manufacturer
    is not known, to the supplier, of the product to be purchased by the
    person making the req
  • by symbolset (646467) on Tuesday May 15, 2007 @03:28PM (#19136245) Journal

    If they had patents that could kill linux, what would Microsoft do? Would they hem and haw and bluster about unspecified patents, or would they drop everything and file suit so they could get restraining orders against all the distributors of this "cancer"?

    Microsoft's duty to their shareholders is to maximize value and exploit their IP. Of course they must choose the latter.

    Therefore, they ain't got diddly or the blabbing would be done and the lawsuits begun.

    • Microsoft will shortly have to expose the patents they believe are violated. That will be their undoing.

      If they sue, it will be against major distro makers that aren't otherwise indemnified (like Novell, it's believed). If they sue end users, they will rue the day, and it will become like the RIAA except that there'll be alternatives to software, where there is a monopoly on music distribution.

      Who will suffer? Microsoft. They're already in trouble with sliding OS sales because they can't make a quality prod
  • Past infringement? (Score:4, Interesting)

    by KarmaMB84 (743001) on Tuesday May 15, 2007 @03:33PM (#19136331)
    Assuming MS really does have valid patents, how could just rewriting the code prevent Microsoft from seeking royalties for past infringement? Why does Linus think that Microsoft can't have patented anything that might be in the Linux kernel now just because basic operating system theory was done in the 1960s? Surely Linux 2.6.x is more modern than 1960s technology, right?
    • Re: (Score:3, Insightful)

      by nanosquid (1074949)
      Assuming MS really does have valid patents, how could just rewriting the code prevent Microsoft from seeking royalties for past infringement?

      Well, infringement wasn't willful and developers would address it quickly, so any compensation would be for damages. And it would be hard for Microsoft to claim significant damages since most Linux users also have Windows licenses (for now).

      Surely Linux 2.6.x is more modern than 1960s technology, right?

      Not by much. Neither is Windows for that matter. Sad but true.
  • by openright (968536) on Tuesday May 15, 2007 @03:42PM (#19136485) Homepage
    If the government ever really wants to address Microsoft as a monopoly, they should realize that the underlying monopolies are granted by the government. The 95 year software publishing monopoly is granted by the government. The 20 year software design/algorithm monopoly is granted by the government. If these monopolies were reduced to reasonable terms, the tight control given to these large companies by these monopolies would be lessened.
  • Duty to Mitigate (Score:3, Interesting)

    by EricTheGreen (223110) on Tuesday May 15, 2007 @03:54PM (#19136683) Homepage
    I would be interested in comments from any lawyer-types on whether the duty to mitigate applies now that Microsoft has publicly announced knowledge of alleged patent violations. If they don't pursue specific action now, but defer it to some later time, could a defendant mount a defense based on Microsoft's failure to address the violation in a timely fashion? Or does this not apply in IP law?
    • Re:Duty to Mitigate (Score:4, Informative)

      by MightyMartian (840721) on Tuesday May 15, 2007 @04:00PM (#19136775) Journal
      You're talking about trademarks. Patents are not bound by that notion of enforcement.

      I suspect legal types are going to be in the same bind as anyone else. Unless Microsoft specifically states what each of these 235 patents are, it's like boxing with the wind. SCO did the same thing, and for precisely the same reason. A moving target is going to last a lot longer than one that's nailed down.
  • hmmmm (Score:5, Insightful)

    by EvilPoster (1090123) on Tuesday May 15, 2007 @04:00PM (#19136769)
    IANAL, but couldnt the statements that M$ employees made about Linux infringing XXX many patents be considered slander? This was obviously done to harm the reputation of Linux, and absolutely no information was given pertaining to the actual patents that Linux violates. Perhaps, it's a different word when this is said about a product rather than an individual, but it seems like damaging the rep of a 'competing' product (with no proof) would have legal ramifications. maybe not?
    • Re: (Score:3, Insightful)

      by Husgaard (858362)

      IANAL, but couldnt the statements that M$ employees made about Linux infringing XXX many patents be considered slander?

      IANAL either.

      Judging from the SCO case (where the unspecified claims were based on copyright instead of patents) this is probably not possible in the US.

      But most other countries take it very serious when a company tries to distort the market with such claims. In Germany a settlement [infoworld.com] after a temporary restraining order on Germany meant that SCO could no longer spread their lies in

  • by rossz (67331) <<ogre> <at> <geekbiker.net>> on Tuesday May 15, 2007 @04:17PM (#19137085) Homepage Journal

    I had hoped Linus would have said this, but I guess it's up to me:

    Hey Microsoft! BRING IT ON, BITCH!

  • by KFury (19522) * on Tuesday May 15, 2007 @04:29PM (#19137273) Homepage
    If Microsoft publicly declares that Linux violates patents but won't disclose those patents it seems Microsoft would be guilty of slander. Clearly they're trying to make businesses think twice about buying into OSS solutions by giving the perception that those OSS solutions could be illegal.

    Just raising the threat is enough to swing business into MS's camp. Without a single company to take point and sue MS for slander they'll get away with it.
    • Re: (Score:3, Informative)

      by Dan Ost (415913)
      I'm sort of expecting to see RedHat file a Lanham Act suit against Microsoft the way they did against SCO.

      Heck, they could use the SCO lawsuit as a template.
  • by Orion Blastar (457579) <orionblastar@gmail . c om> on Tuesday May 15, 2007 @07:17PM (#19139411) Homepage Journal
    "Hi, my name is Linus Torvalds, and I pronounce the 'Microsoft IP violations' in Linux as bullshit!"

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