Microsoft Will Not Sue Over Linux Patents 291
San Muel writes "In an official statement, Microsoft has said it has no immediate plans to sue after alleging patent infringements by open-source vendors for the time being. The company goes on to say that, essentially, it could have done that any time in the last three years if it wanted to. So what's the purpose of these bold announcements? '[John McCreesh, OpenOffice.org marketing project lead] added that while Microsoft may not have plans to sue, it could be using the threat of litigation to try to encourage corporate customers to move to those open-source product vendors with whom it had signed licensing agreements, such as Novell. "Microsoft has spent time and money accumulating patents. Maybe it has started using that armory to move corporate customers to open-source software that Microsoft approves of."'"
Boring (Score:4, Insightful)
Corporate Intimidation Tactic (Score:4, Insightful)
Huh ? (Score:3, Insightful)
You see I have this big bat? (Score:5, Insightful)
I could have used it upside your head but I choose not to at this moment. But I could.
This is worse than FUD, it's an outright threat. By simply announcing you could sue, challenges large business into accepting risk. To the person in the trenches, they know Microsoft's got nothing. However to the CEO and the CIO, the same people who move a company forward, this is a challenge to their capital expense planning. They see the threat of lawsuit and immedietely classifiy that as risk.
How to mitigate it? Unfortunately you don't. Because it is the idea of lawsuit you cannot work around this risk unless you avoid it altogether. And this is what Microsoft is banking on. And by avoiding Linux for this year and next in capital planning, you avoid implementation of Linux in a corporate environment for at least three years. And by that time, Microsoft is betting that you will have spent so much T&E in their shop that it would be very expensive and time consuming to leave.
The intent was NEVER to sue... (Score:3, Insightful)
The goal is to make money. MS is not after glory , it's after the Benjamin's.
Lawsuits are like nuclear weapons, it's the option of last resort and pretty much assures either destruction of MASSIVE damage to all sides involved. When lawsuits fly the only winners will be the lawyers.
Re:Boring (Score:5, Insightful)
Now when we've got them to make a humiliating climbdown, you want us to shut up?
I say we scream this headline all the way to Bangalore and back, just so everyone gets the message that the patent threat was a pile of worthless hot air all along...
Play the game our way... (Score:5, Insightful)
What they are saying is that they really honestly don't mind when we are using Linux. And it's true, it even is smart.
Just look at it, Dell customers get to use Linux but still pay their share of MS tax, but now for an OS Microsoft doesn't need to develop or support.
You thought having 99.9% marketshare is the ultimate way to make money? Think again.
Incriminate thyselves (Score:2, Insightful)
Re:M$ doesn't *need* to sue... (Score:2, Insightful)
Racketeering? (Score:4, Insightful)
I think this is called "Racketeering" isn't it. Like the mob asking businesses to pay for protection money so "nothing happens to them". I think this just crossed M$ over line in to illigal actions here.
If you work for a company M$ has approached with one of these offers I -encourage you- to ask your company to call M$'s bluff - and tell them you consider this move an illigal one and that your company will be contacting the States Attorney Genral. If enough companies do this it might scare the living hell out of M$. But first and formost - actually contact the States Attorney General - don't threaten to do it - DO IT!
Heck maybe not just companies should do this but individuals as well. I think there are enough links to statements by M$ that the States Attonrney General's could have something to go on - right?
Re:M$ doesn't *need* to sue... (Score:5, Insightful)
Let's see.
Microsoft says.
1. Open Source projects are violating our patents.
2. We will not sue over these patents.
3. We will not tell you what patents they are violating.
4. You should give us money so we will continue to not sue you.
They can't because the jig would be up (Score:1, Insightful)
They CAN'T sue, the whole point to to cast veiled threats against customers. To try to dissuade them from switching from Microsoft. If they sued the poker game would be up and they'd have to show their losing hand.
Re:Open Letter to Brad Smith (Score:4, Insightful)
So who wants to buy a full page ad in a trade magazine or national newspaper?
Re:Open Letter to Brad Smith (Score:5, Insightful)
Microsoft just lost shitoads of patents (Score:5, Insightful)
Re:Microsoft will lose the right to sue ... ever (Score:5, Insightful)
1. The Wiki you linked to does mention in how some cases, such as contesting an election, a very short period of time, mere days, is enough to invoke the doctrine, so I see where you get the idea timely means something less than a year, or even a quarter. The normal period is more like six years as doctrine. The big court cases specifically involving patents show up better if you search for 'submarine patents' instead of 'laches', and you may want to look at the time frames of the most significant cases there, as they are typically a lot more than the six year period, and many of them are more than the whole current 20 year life of a patent. Microsoft could probably wait 2 or 3 years and still be within the normal period that is considered timely. The could even justify this by claiming the allowed some time for lesser remedies such as negotiation to work if they could.
2. One principle behind laches is that the delay may be used to increase damages and make the resulting lawsuit more profitable, (usually because the defendant has presumably made more profit in the meantime). So what happens if a company waits a while to sue, but in its complaint sues only for an amount it claims reflects damages incurred before the date it first contacted the defendant, and waives additional damages subsequent to that date? You'll note my sig - I don't have a good answer to that question, but I think it may be a potential way to defuse a defense claim. Laches is an affirmative defense, requiring both assertion and proof by the defendant. A single affirmative defense doesn't usually lead to a whole case being thrown out with prejudice or anything on that order - more often it just limits the case's scope. (OTOH, if Microsoft doesn't have much of a complaint, it shouldn't take much to get the whole thing dismissed.)
Re:Racketeering? (Score:4, Insightful)
"Boy, this sure is a nice store. Be a shame if something happened to it, wouldn't it?"
Is a protection scam. The threat is of performing an illegal act - breaking the windows, trashing the place, burning it down, or what have you. All of those things are themselves illegal.
While what MS is doing is similar in result (they hope), it is in content much the same as the DA offering a lighter sentence for witness cooperation. It's "we could prosecute, but we won't if you cooperate." This is - obviously - not illegal. It's the same thing as all the megacorp patent cross-licensing that goes on.
Which is itself indicative of how crap the system as a whole is, and this is perfect evidence of why we need patent reform yesterday. But waving the bloody shirt and calling it racketeering doesn't help anything.
Re:This is so infuriating. (Score:3, Insightful)
We all (slashdotters) know this is FUD. The problem is that not everyone is as sensible. Most of the world feels the need to be extremely cautious, and this FUD will work. Even if they are damned sure they can get through this without issue, if it's more certain they can do so by dropping FOSS from their systems, a lot will do it. Oh, it'll be a few at first, here and there... And then more follow until there's an avalanche. MS knows this. They're just waiting for that. If they have to start a lawsuit to do it, they will... But if they can do it for free, with a baseless threat, that's much cheaper and easier.
Re:Microsoft will lose the right to sue ... ever (Score:5, Insightful)
Laches need not apply, for the following reasons (off the top of my head).
First and generally, statutes (legislation) trump common law (judge-made law). Laches is common law doctrine, patents are statutorily enacted. The period for execution of patent rights falls within a statutory declaration of, I believe, 20 years. The Court is not likely to have the power to supplant the statutory rights granted to the patent holder because of a delay. If patents were meant to have a timeliness to prosecution component, that ought to have been something considered by the legislature (Courts are inclined to presume competence of the legislature), and its absence may be deemed intentional.
Second but generally as well, equity [wikipedia.org] trumps law only where the law is unduly harsh. Patents are a legal concept whose temporal restrictions have been well reasoned by the legislation and long considered by the judiciary. As commercial negotiations regularly involve sitting on ones' right to sue, it is nigh impossible that equitable doctrines would come into play. It does not squelch the right to assert the proprietary protections vested by statute.
The concept of estoppel [wikipedia.org] may apply. Where one reasonably relies upon the statements of another to their own detriment, they may have an equitable remedy. Thus, if a commercial entity relies upon Microsoft's declaration not to sue in the immediate future, Microsoft may be barred from recovering at law because the commercial entity relied upon Microsoft's statements.
That being said, Microsoft has limited the scope of its statement to "immediate future", therefore any prolonged infringement would not be protected by such mechanisms. Microsoft need only bring a few demand letters to discontinue infringement, and the defense of estoppel is waylaid.
Thus, laches is unlikely to apply, however estoppel may, but only for the quasi-timeframe Microsoft cited of the immediate future. YMMV & HTH.
Seriously, have your lawyer send M$ a letter.... (Score:2, Insightful)
In that letter, let M$ know that you are an Open Source developer, and need to know exactly what patents M$ thinks your code infringes, so you can fix any problems. Of course, you do need to specify what you work on, so you can be specific, and demonstrate an actual need to know that information.
Now, if M$ does not or will not tell you what specific patents you may be infringing, they can no longer sue you. Well, they can sue you. But you've got a perfect defense: you tried to work out the problem.
Oh, yeah, make it an open letter, with full-page ads in the WSJ and NY Times. It'll cost some money, but it will really gut this M$ FUD campaign like a dead mackerel.
One hopes Linus and the FSF plan on doing just that...
The threat is worse than the suit (Score:4, Insightful)
An actual suit could result in MS having some or all those patents thrown out, at which point they are no longer able to affect a PHB-HMN.
Re:Legality (Score:3, Insightful)
Truth is the universal defense against slander and libel accusations.
Of course, in this case, you don't get to find out if it's true until the patents are tested in court. Even then, should the patents be found to be uninfringed by OSS, you would have to, in turn, sue MS and demonstrate in court that they knew ahead of time that the patents were not being infringed when they made their statements. And, as long as the patents themselves were not obviously on things that were not being infringed, MS can easily argue that they made a good-faith effort to defend their patents, since they also didn't know if it was true until it was determined in court.
And then, if you successfully demonstrate that MS knew its patent for "a device and method to rotate partially-cooked discs of batter to accomplish equal browning on both sides" was not being infringed by OSS prior to the courtroom test, you will only be awarded actual damages.
Patents (Score:4, Insightful)
Once these patents are gone, we can then ask Microsoft to revise their count, so that we can see how much work is necessary for the next round of patent reversions.
I am not a patent lawyer, but shouldn't there be some simple way to tell the patent office that they aren't doing their job of vetting patents properly? Shouldn't MicroSoft be slapped properly for submitting so many invalid patents?