Linus Responds To Microsoft Patent Claims 496
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."
Schwartz (Sun) responds (Score:5, Informative)
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]
patents are not that ancient (Score:5, Informative)
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.
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Steve Stites
Re:constitutional lawyers? (Score:5, Informative)
Novell has replied to Microsoft's claim as well (Score:5, Informative)
From the Novell press release [novell.com], issued yesterday:
The commentary on Groklaw [groklaw.net] is interesting as well
Re:constitutional lawyers? (Score:5, Informative)
Show the proof! (Score:5, Informative)
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
Re:Sad or Telling? (Score:3, Informative)
Re:Duty to Mitigate (Score:4, Informative)
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.
Re:Software was not; but math properties were (Score:2, Informative)
IBM practically invented software patent litigation and threats thereof. If IBM were to go to court to invalidate Microsoft's patents, then who's to say Microsoft or a 3rd party wouldn't take this as an invitation to go to court to invalidate some of IBM's patents. It's a slippery slope that the major tech companies don't really dare to tread.
IBM didn't take SCO to court to valiantly defend the open source movement against a patent litigation attack on their flagship operating system. SCO sued IBM over breach of contract. SCO and IBM had worked together on a new operating system, until that project was scrapped. SCO pretty much bet the shop on this project, so their going out of business (at least out of the software business) is partially the result of IBM scrapping it. The lawsuit is entirely about SCO going out of business because of a failed business deal with IBM, and trying to get some damages awarded for it.
Everything else, including the involvement of Linux, is just a side-issue. SCO also seem to believe (not entirely without justification) that IBM's support for Linux has given this free unix on x86 enough credibility to destroy the market for SCO's main product: a proprietary unix on x86. They hope to prove that IBM transferred technology from their cooperation with SCO to their contributions to Linux, in order to get more money from IBM if they win their case. It's all about their breach of contract case against IBM, and getting money, I'm sure noone at SCO believes they'll make Linux go away and go back into the unix on x86 business.
20 years ago, IBM was considered the evil Big Brother of the tech business by people who would have been slashdot readers today. I don't really believe in evil computer companies, but I certainly don't believe in altruistic ones.
Re:Sad or Telling? (Score:5, Informative)
It was lots worse than that:
Re:Sad or Telling? (Score:4, Informative)
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:3, Informative)
Re:Sad or Telling? (Score:2, Informative)
By 1996, when Caldera bought the rights to DR-DOS from the imploding Novell, the product was fully obsolete. The only significant value of DR-DOS to Caldera was in allowing it to launch a lawsuit against Microsoft. The DR-DOS lawsuit was settled before going to trial, with a large payment from Microsoft to Caldera. It was not only the prototype for Caldera's later Linux lawsuit, it also funded Caldera's acquisition of the UnixWare source code and SCO brand, making the Linux lawsuit possible.
Re:The assimilation of Linux.. (Score:5, Informative)
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.
Re:Accusation - substantiation = slander (Score:3, Informative)
Heck, they could use the SCO lawsuit as a template.
Re:constitutional lawyers? (Score:4, Informative)
Re:Sad or Telling? (Score:5, Informative)
Re:Estoppel by Silence (Score:2, Informative)
There's nothing to support that notion for patents. For trademarks, yes. For patents, no. It's quite allowed to enforce a restriction of a patent for one party, and ignore another.
Estoppel enters into the mix if a party changes its claims in the course of litigation.
The doctrine you are looking for is Laches. Laches has been used as a defense against patent infringement, and appellate courts have delivered opposing findings. Compare Wanlass v. Fedders Corporation, 145 F.3rd 1461 (Fed. Cir., 1998) with Wanlass v. General Electric Company, 148 F.3rd 1334 (Federal Circuit, 1998).
In the latter case, the same court assigned blame on the plaintiff because not only had their delay caused undue evidentiary burdens on the defendant, but also because the defendant had long since ceased production of any infringing product.
The Fedders case establishes a duty on the part of the patent holder to police the market where suspected infringement occurs, but did not impose any penalty for failing to do so under the facts present in that particular case.
These separate findings were by the same court, a week apart, for the same plaintiff in very similar cases with substantially similar claims. They suggest that the application of laches to patent infringement claims remains subject to evaluation of all other facts of a given case.
As it stands, the best you can hope for in applying laches to a patent infringement suit, is that it may help a motion for summary judgment to be granted, and may be a bargaining chip to reduce a settlement amount.
But there is no basis to claim that delay in prosecuting a patent infringement has any assurance of diminishing the patent holder's right to seek damage in future litigation.
Re:I got questions... (Score:2, Informative)
Re:Sad or Telling? (Score:2, Informative)
See:
http://www.chillingeffects.org/reverse/faq.cgi#QI
Re:Sad or Telling? (Score:4, Informative)
Caldera bought DR-DOS from Novell in 1996, for $400 thousand, long after the alleged damage to the product had been done. The company settled with Microsoft over the DR-DOS lawsuit for an 'undisclosed sum' in January 2000, which Microsoft valued at $155 mn, but others speculated was actually 'much higher'.
http://news.bbc.co.uk/1/hi/business/600488.stm [bbc.co.uk]
http://www.windowsitpro.com/Articles/ArticleID/804 5/8045.html?Ad=1 [windowsitpro.com]
In August 2000, Caldera agreed to acquire the Santa Cruz Operation's Unix products, including UnixWare and the SCO name. Caldera later changed its name to The SCO Group, but Caldera management remained in charge, i.e. the company was actually Caldera, not the old Santa Cruz Operation, which became Tarantella, and in 2005 was acquired by Sun Microsystems.
http://www.infoworld.com/articles/hn/xml/00/08/02/ 000802hncaldera.html [infoworld.com]
http://www.sun.com/software/tarantella/index.xml [sun.com]
Caldera's financial statements (see www.sec.gov) show it lost more money in 1999 and 2000 than its total revenue for each year, and had negative cash flows from operations. How was such a company able to issue equity that investors actually bought, pay for its ongoing losses and come up with enough money to acquire and sustain UnixWare, another loss-making business, along with the SCO name, in a deal valued at $91 mn? The answer is that the entire operation was funded by the DR-DOS lawsuit.
http://practical-tech.com/operating-system/linux/c aldera-buys-sco-unix-professional-services/ [practical-tech.com]
http://www.newsforge.com/os/04/03/30/0047220.shtml [newsforge.com]
Re:constitutional lawyers? (Score:3, Informative)
Yes, but what you fail to notice is that the intent of the writers is irrelevant. First, the draft you cite was not the final, approved draft. You would have to look into the intent of those who _ratified_ the amendment, as they obviously approved the present Second Amendment. As far as the Constitution proper is concerned, there were over 1600 people involved in the process. To follow the "what was their intent" line imposes seeking those 1600 people or failing to achieve "intent."
Fortunately, we have a unifying principle courtesy of the Federalist and Anti-Federalist papers and Blackstone. That is, authors on both sides of the debate were of the impression that the Constitution (and by extension, its amendments) would be interpreted under the contemporary rules of statutory construction. As these Papers are considered the summary of opinion of both factions, this should be authoritative. Blackstone's Commentaries discusses these rules in sufficient detail. Unfortunately for some, those rules were wholely objective in nature; "screw what they were thinking, what did they _say_." Justice Thomas is more in line with this approach.
Under this approach, amendments are remedial laws; laws that correct a flaw in the law. This means we look at the law before amendment, the abuse under that law, and then interpret that amendment only as broadly as necessary to correct the abuse. (This is damning for the Amendment XIV as it was enacted only to ensure blacks were not subject to a different set of laws than the whites---but I think Section 5 is most compelling (Congress has sole power to enforce Amendment XIV, not SCOTUS).) The abuse corrected by Amendment II is that the Federal government under the unAmended Constitution had the power to disarm the people, who held absolute authority over the Constitution ("We the People...ordain and establish this Constitution...."). The right to keep arms was not limited to hunting or crime prevention, but to curb the abuses of government. Of course, States had that right absent an amendment in the state constitution; but as SCOTUS has upheld the Anti-Federalist fear of extending equity to law, Amend XIV could be (but curiously is the only of the original Bill of Rights) used to extend Amend II to the states.
I digress. My point is, you're citing a draft as being an authoritative reference as to the intent of an amendment. If I had a draft that said "all new tires should be slashed," but the later final version was "all new tires should be stashed;" would you say the draft was authoritative? If you wrote a check for 10000 USD, but later added a period, does that mean I should be allowed to ignore the final value of the check and deprive you of 9900.00 USD?
The problem with looking to draft versions of legislation is it allows people to change the meaning of the law based on which draft they chose. This sin has been applied too many times by courts to attain a different outcome than one mandated by statute.
My favorite abuse is when a bill was argued in Congress to ensure that minorities were fairly considered during employment decisions (i.e., no discrimination based on race). The minority thought that the language of the bill could be construed to mandate quotas, and the majority assured them that it _would not_ allow quotas. Within 3 years, SCOTUS had considered the law and construed that quotas were mandated, and cited the minority challenge that the bill so mandated. It's my favorite because those who voted for the law claimed the language did not mandate. If SCOTUS took intent seriously, they would not cite the minority opinion, but those who drafted and enacted the legislation. The truth is the language was ambiguous, so the Court should have said "no quota" and allowed Congress to remedy the error.
As for a patent law being unconstitutional, the answer is yes and n