Through the Patent Looking Glass with Microsoft

Andy Updegrove writes "By now you've probably read more than you want to about Microsoft's announcement that it owns 235 patents underlying leading open source software, including many opinions about whether Microsoft's new assertions do, or don't, represent a real threat to Linux, OpenOffice, and other OSS. To get to the bottom of the issue, though, you have to take a deep dive into how patent cross licensing works these days. When you do, you realize that patents don't mean what they used to, and have far more defensive than offensive value in the marketplace today. It also becomes apparent that it really doesn't matter whether Microsoft has valid patents or not, because so many other companies do as well. Today, what companies worry about isn't asserting their patents against other companies, but maintaining their freedom of activity. In this case, the open source community can simply ride the coattails of the major vendors, because Microsoft doesn't hold enough cards to win the hand, much less the game." Relatedly The Register is reporting that the author of the main report being used by Microsoft to support their patent claims has come out against Microsoft's interpretation of his work and Jonathan Schwartz gives some free advice to the overly litigious.

No matter what MS says

[zappepcs]

The resounding reply from all corners has been either 'so?' or 'They have nothing, and won't have or they would have already shown it'. What's more, Linus more or less dismissed the claims as nothing more than FUD. There are claims that this FUD is being used to help bolster MS's Q2 sales of Vista.

Nothing but conjecture abounds as MS is doing a SCO and not saying what they have, nor why they want to even mention it. Yet others claim that the Linux vouchers MS is touting actually makes them a Linux distributor and thus subject to the GPL.

The whole thing should pan out to be a very interesting chapter in tech history.

Someone let me know when there is real news on this topic

Re:The "defensive patent" theory is flawed

[drinkypoo]

Last year IBM sued Amazon over IBM patents and it had nothing to do with "maintaining freedom". The whole theory of defensive patents is just an excuse for patent-mongers like IBM to continue to restrict competition.

Amazon is the holder of the hopefully soon-to-be-invalidated so-called "one-click patent", and they have sued multiple companies for no good reason (including under that particular patent) so I can't feel bad about people suing Amazon for patent violation.

Who has IBM gone after without provocation?

Never sue someone with no money

[rimcrazy]

This is simply good marketing coupled with an opportunity when OSS is finally in a position where real money is finally being made. I've worked in semiconductors for over 30 years. In that business if you start a new company, if you are not a direct threat to the big guys....they all just simply sit back and wait until you are finally making some money. Once that happens the lawyers from Intel, TI, IBM, etc., etc. etc. all line up at your door. They come in and say "Gee, we think you are violating our patents. Tell you what, we've decided the stack you violate is 8' high. Now, we can litigate each one...............or for today only, we will offer you this screaming deal of 30K/inch plus a royalty of 0.05% on every product you make........hell, we will even throw in a set of Ginsu Knives with the deal cause we are such nice guys!"

The have enough clout in the marketplace to make you look bad with their FUD. They can shut you down. This is simply legal extortion plain and simple. Tony Soprano would be proud.

Re:No matter what MS says

[TheRealMindChild]

I know for sure, one of the patents (more or less) is how FAT stored long file names. For those not too clear on what that actually is, FAT long filenames are stored in regular "folder entry" structs with volume ID, read-only, system, and hidden attribute bits set, preceeding the initial entry for up to 20 entries (260 byte file name). Example:

LFNStruct|LFNStruct|LFNStruct|LFNStruct|LFNStruct| LFNStruct|Normal File Entry

Now Microsoft can, to a certain degree, claim this is "innovative" for the simple fact, I have NEVER seen another implementation of long file names in FAT. But the issue quickly comes to light, "How can I possibly implement a correct, COMPATIBLE FAT file system driver without using MS's long file name method?". Well, you can't. And FAT being what it is, there is no entity in the world that will give MS exclusive rights to implement long file names on FAT... even if they DID come up with it.

Does the end user pay?

[fermion]

The point of the MS announcement was to promulgate the theory that end users would either be required to pay compensatory damages to MS, or the products would no longer be allowed to exist, thus disrupting business.

I believe that this historical attack on customers has been uniquely confined to the software industry, that is until the RIAA got a hold of the business model. For example, If I buy, in good faith, an unlicensed book, The author or his or her agent does not come after me and demand triple compensation. OTOH, if I, as a business, in goo faith properly license all my software, and conduct full due diligence to insure that no unlicensed software is installed, I can still be held in great financial liability. At one time such laws were used to stem the frankly rampant use of unlicensed software, but over the past 10 years the main objective was to allow vendors to spy on customers and make sure that competitors software is not being used.

So this MS tactic is just an extension of previously United States certified monopolistic behavior. At first it was OSS was more expensive to integrate with MS software. Then it was OSS was unreliable when used with MS software. Now it is 'you have to pay MS either way, so why bother.' The funny thing is that no one is saying Zune and MS music are a dead end because of the patent disputes. No one is saying that MS users are going to have to relicense Windows due to the patent disputes. Is MS Windows and Vista going to pulled from the shelves and will every MS user have to upgrade their PC to remove the offending technology? Somehow I think that MS Will survive these patent disputes, and so will OSS.

M$ : FUD or fact

[PatentMagus]

Looking at the timing, a couple of countries recently announced a push for open standards and open software for government use. Then there is the wide adoption of OSS in some coutries like India, China, ... Huge huge threat to M$ short term strategy. I think their long term plan is to embrace and extend OSS though. Now, defensive patenting is a valid strategy for companies but doesn't work against trolls. You can't tell a troll that they are infringing your patent (except in rare cases). Having your own patents is kinda like having a gun in your pocket. Everyone with guns tries to be polite to other people with guns. There is occasional shooting. The unarmed regularly get robbed, raped, and beaten. Regardless, M$ isn't really trolling. I do think they are throwing FUD backed by the threat of an RIAA style witch hunt. Easy enough: 1. Hang dongles on some web sites to catch unwary linux users. 2. Trace the ip_addr 3. ??!!! 4. Profit!!! The problem they'll face is that some of us evil lawyers will happily attack their patents. Look what happened to SCO. The community really got engaged and gave lots of valuable information and insight. That gives the OSS side a huge advantage. The discovery phase of a case is often where the biggest bills are generated. In an OSS patent infringement action, the defendant simply hands over the code. The plaintiff, however, has thousands of pissed of people dredging up prior art and other ways to invalidate the asserted patents. A few hours effort from thousands of people translates into millions of legal fee dollars that the OSS defendant gets for free. Then a bunch of that gets handed to the plaintiff who spends millions trying to understand/rebut it. On the other hand, the community has done a horrible job finding a way to get rid of the one click patent. So, can M$ profitably sue? Yes, they can. They'll sue someone random and make lots of noise about it. Regardless of what the OSS community does, the bulk of the market will be frightened away from "risky" software. A few million is less than a percent of what M$ takes in. Cool, the lawyers get rich.

Create a wiki to destroy the patent system?

[sectionboy]

We all know how broken the current patent system is, especially the 'software patent' evil. Can we use wiki-like system to undermine it? Create a wiki for everybody to record something new, no matter how small/useless it might look like, and dedicate it to public domain. With properly managed time stamps, it can be a collection of all 'prior art'. (It's just like doing something oppsite to wikipedia, which stresses so much on unoriginality.)

Re:No matter what MS says

[just_another_sean]

It's not really about asking Linus or wanting his opinion. What is important is that the lead developer of the supposedly infringing product has come out and stated "prove it". At this point, until MS puts up or shuts up, it's his word against theirs. If MS can create uncertainty with their claims in the business community then it's nice to see Linus counter that with some uncertainty about MS's claims.

I have publicly challenged Microsoft to sue me

[christian.einfeldt]

This Microsoft FUD campaign really needs to be challenged, IMHO. I am an attorney, and I don't think that Microsoft has valid patent claims against me personally, and I am using Edgy Ubuntu and Mepis 6.5 and SuSE 10.0 and SuSE 10.2. The Mepis 6.5 SuSE 10.2 I am using in my law practice; and the Edgy and SuSE 10.0 I am using to make a film about Microsoft's anticipated loss of market share due to the growing popularity of FOSS. The film is called the Digital Tipping Point, so you would think that if Microsoft has a desire to shut up anyone, I would be among them. At any rate, I have created a list of people who would like to be sued by Microsoft. Please feel free to sign up. The more the merrier! It's a wiki page. Here is the tinyURL:

http://tinyurl.com/2wlemy [tinyurl.com]

Here is the full page:

http://digitaltippingpoint.com/wiki/index.php?titl e=Sue_me_first%2C_Microsoft [digitaltippingpoint.com]