Microsoft Will Not Sue Over Linux Patents

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."'"

Legality

[Falesh]

At what point does this become illegal? Are you allowed to threaten whoever you like to strong arm customers into buying your product?

There should be a way to make MS go to court or lose the right to sue.

Can't be many possible explanations for this

[jimicus]

Possible explanations I can think of:

1. Microsoft was planning to sue everyone and his dog until someone pointed out the various Open Patent movements, and it might be a bad idea to wake up such a sleeping giant.
      I doubt it. I don't think it's a sleeping giant as much as a sleeping leprechaun, and Microsoft is pretty careful about what they publicly announce these days.

2. The whole "we've got patents" thing was intended to stir up some nice headlines in magazines like Forbes, with a view to getting some nice op-ed FUD. Basically, a means of encouraging Microsoft-friendly top level CTOs to kill any Linux projects they hear about. It's not like there's going to be anywhere near so many editorials printed next week saying "Further to Microsoft announcing their patents, they've now announced they don't intend to sue" as there were editorials announcing the patents in the first place.

Much more likely. Unlike Microsoft to admit to spreading FUD quite so flagrantly, though.

Actually..

[Anonymous Coward]

isn't it legally questionable to "not sue yet" if you have a patent on the technology and you know that the patented technology is widely used in the market? You're actively letting people use and enjoy your patented technologies so that there would be more users when you finally sue. Sounds a lot like "entrapment". I think they should at least forbid people from using them, preferably by telling what exactly they are using. Companies usually sit quietly on their technologies and come out with a bang when they suddenly surface their submarine patents. You don't see many of them brewing FUD on the news.

Microsoft will lose the right to sue ... ever

[Anonymous Coward]

If you find that your patent has been violated, you have to sue in a timely manner. You can't wait or the court will pitch out your case because of the doctrine of laches. I suppose someone should ask them how they intend to get around that problem.

http://en.wikipedia.org/wiki/Laches_(equity) [wikipedia.org]

"Laches is an equitable defense, or doctrine, in an action at law. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one's rights in a timely manner can result in claims being barred by laches. Laches is a form of estoppel for delay. In Latin,

        Vigilantibus non dormientibus æquitas subvenit.
        Equity aids the vigilant, not the negligent (that is, those who sleep on their rights). "

Doctrine of Laches

[Anonymous Coward]

I wonder if the Microsoft attorneys approved of this comment that they could have sued 3 years ago. IANAL, but there's a legal defense called Doctrine of Laches - basically you can avoid liability if the patent holder delays too long before commencing litigation. It's traditionally 6 years, but I'm pretty sure recent cases have argued timeframes of 4 years. For that reason it doesn't seem smart to admit publically that you are aware of infringement unless you are ready to go to court. It seems even worse to admit you've known about it for 3 years.

Re:That, sir, we will fight against

[lilomar]

Any open source movement that falls in to the err of allying themselves with microsoft's such selfish moves should take notice and straighten up themselves in line with the open source philosophy accordingly.

Now, don't get me wrong, I love Linux and would never go back to that POS Windows even if Bill Gates were personally paying me.
But sometimes GNU/Free Software Enthusiasts scare me.
Does the above quote sound like a cult to anyone else? I mean, RMS has some great ideas, but he isn't a god or anything.

Yes, I know. The Penguin Ninjas will be visiting me shortly.

Re:Legality

[Bill Barth]

Is there perhaps a case (say brought by RedHat or another non-Novell Linux distributor) for tortious interference? I.e. if RedHat can show that one big deal fell through because of MS's psuedo-threat, haven't they had their business relationships interfered with in an illegitimate way?

No Presumption of Validity, per Microsoft?

[privaria]

Microsoft made a statement in its recent motion for a new trial [72.14.253.104] in Lucent vs. Microsoft [wikipedia.org], a patent infringement case that it lost back in February to the tune of $1,500,000,000. It argued that a jury in a new trial should have the opportunity to "hear and weigh the evidence" that Microsoft claims makes the Alcatel-Lucent patents invalid, under a new standard of obviousness recently established by the Supreme Court in KSR vs. Teleflex [supremecourtus.gov]. Microsoft said:

KSR calls into question the very presumption of validity, since it demonstrates that the PTO itself applied the wrong obviousness test to the patents-in-suit. Had the PTO applied the KSR test, the patents-in-suit may well not have issued. While 35 U.S.C. 282 does establish a presumption of validity, it does not mandate the "clear and convincing" burden of proof. This burden of proof could and should be altered by the courts because of KSR. See KSR, slip op. at 22-23 ("We need not reach the question whether the failure to disclose Asano during the prosecution of Engelgau voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption--that the PTO, in its expertise, has approved the claims--seems much diminished here."). [Note 2, p. 10, emphasis added.]

So, given Microsoft's anti-patent assertion in this case where it found itself on the wrong side of someone's patents, it would seem hard for them to ask us to presume that these 200+ patents of their own, issued well before KSR vs. Teleflex, are valid over the prior art that the Linux world will undoubtedly find in abundance once Microsoft finally has to reveal their claims. That is, if it ever actually tries to enforce them rather than blabbing away at its current "my dad can beat up your dad" playground level of discourse.

Obligatory disclaimer: I am a registered patent agent and an independent inventor, but not a lawyer. I don't provide legal advice or services to anyone regarding issued patents. And this wouldn't be legal advice even if I did.

Re:Open Letter to Brad Smith

[TheRaven64]

Exactly. Within the industry, most of the big players have cross-licensing deals. They each try to put a similar number of patents in the pile, and so no one ends up owing anyone else any money. If Microsoft got a load of their patents invalidated, then their pile would become smaller than everyone else's and they would have to start paying.

Re:M$ doesn't *need* to sue...

[Anonymous Coward]

Microsoft isn't trying to scare open source developers. They're trying to scare potential customers.

Re:Open Letter to Brad Smith

[monxrtr]

Right, all the big corporate interests form oligopalys to shut out further competition. But if I were Microsoft I'd watch out. I'm sure the pharmaceutical industry feels very threatened by all the negative attention the software industry has brought towards patents. When Microsoft is applying for 3-5 thousand patents a year! and getting 500-1000 patents granted, $800 million drug research costs are threatened. No doubt somebody inside Microsoft told Brad Smith to STFU after that fortune article.

Re:Somebody call down below

[dvice_null]

Perhaps Microsoft is just trying to get our attention away from the Vista sale numbers with these "news". If people would see how badly the Vista is really selling, they probably wouldn't buy it, and that would hurt Microsoft a lot more than this patent war hurts when Microsoft loses.

Similar to RIAA

[alucinor]

Doesn't Microsoft wanting to collect royalties from Linux vendors strangely mirror how the RIAA also wants royalties from all these other sources? Both are quite similar, strangleholds on the traditional distribution channels, aka robber barons, who strike out at any alternate form of distribution. Both groups are making gobs of cash, but they're also dependent on that ridiculously huge cash flow to prove sustainability of their models. MS makes insanely huge profits, but if they started to dip, investors would question whether their model was not just a flash in the pan, though a big one, nonetheless. MS's moolas don't neccessarily translate directly into success: it doesn't scale with man-hours cranking out great code, and it doesn't mean the price reflects their product's real value (how many times over have we payed for the same millions of the lines of Windows code?), just that they're really the only option to run Win32 applications.

Re:Open Letter to Brad Smith

[Vulva R. Thompson, P]

Here are some devil's advocate questions.

On these IP issues specifically, isn't it safe to assume that Microsoft has a master plan and playing chicken/bluffing like SCO did serves no long term purpose? And if that's the case, would they honestly enter the battle unarmed (i.e. patents don't have some teeth)?

Doesn't this issue strike at their very lifeblood? No matter how much distaste you feel for them (myself included), it's a serious, profitable company with lots of clever lawyers on the payroll and a penchant for solving problems with bags of money.

Comparing SCO and Microsoft, one could argue that SCO's purpose was always a focused, short-term goal. How the money got distributed/funneled is irrelevant. It was a bluff from the beginning designed to cash out for the interested parties.

But it seems obvious that Microsoft's goal is aimed at how they'll derive and expand future revenue to satisfy their shareholders (a long-term goal which the directors also benefit from). In both cases ultimately it all leads to the share price but comparing SCO to Microsoft appears to be like comparing a pink sheet to IBM.

So in summary, what arguments are there against thinking that Microsoft hasn't planned out every last move and contingency (including the ideas in your post)? Honestly, how many predicted something like the Novell agreement?

hmmm,

[MrCopilot]

immediate
1. occurring or accomplished without delay; instant: an immediate reply.
2. following or preceding without a lapse of time: the immediate future.
3. having no object or space intervening; nearest or next: in the immediate vicinity.
4. of or pertaining to the present time or moment: our immediate plans.
5. without intervening medium or agent; direct: an immediate cause.
6. having a direct bearing: immediate consideration.
7. very close in relationship: my immediate family.
8. Philosophy. directly intuited.

Couldn't they just used the words "Microsoft has said it has no plans to sue after alleging patent infringements by open-source vendors."

How about you guys just license these specific patents to OIN, http://arstechnica.com/news.ars/post/20051110-5553 .html [arstechnica.com] , Oh I remember its that whole sharing thing Bill never understood. I personally lay the blame with his grandmother. http://www.pbs.org/cringely/pulpit/2000/pulpit_200 01123_000672.html [pbs.org]

See also Triumph of the Nerds:
Vern Raburn President, The Paul Allen Group I ended up spending Memorial Day Weekend with him out at his grandmother's house on Hood Canal. She turned everything in to a game. It was a very very very competitive environment, and if you spent the weekend there, you were part of the competition, and it didn't matter whether it was hearts or pickleball or swimming to the dock. And you know and there was always a reward for winning and there was always a penalty for losing.

Glaring mistake!

[SQLz]

"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."
Should read:
"Microsoft spent time and money accumulating Linux distributions, installing them, and stealing their ideas to accumulate patents. Now it wants to pick up where SCO left off and continue to spread FUD about linux."

"No immediate plans to sue"

[DragonWriter]

Sounds like it may be an attempt to weaken the grounds (reasonable apprehension of suit) for supposed "violators" to file for a declaratory judgement, while keeping the "we could sue somebody someday" FUD alive to scare enterprises away from Linux.

sigh

[pak9rabid]

I'd like to see a provision added to patent law that would effectively make patents similar to trademarks in that if a company chooses not to defend thier patent in court, then they lose their rights to their patent. This would prevent companies like Microsoft from pulling shit like this.... Then again, a class action lawsuit brought forth by open source companies against Microsoft would also be a nice thing to see as well.

OSS, sue Microsoft for patent infringement

[0p7imu5_P2im3]

No, not for slander. We (OSS) should sue Microshaft for patent infringement.

There are plenty more OSS patents that undoubtedly are infringed by Microsoft. And if the entire OSS patent holding community (IBM, Sun, FSF, GNU, Redhat, etc.) sue Microsoft with all their patents, Microsoft can't hope to meet them on a cross-licensing deal, unless that deal includes a ceasing of patent hostilities against OSS users. Since they won't do that (and here's where most those companies would back out), it would go all the way to the Supreme Court, which would hopefully throw out software patents since algorithms (mathematical processing) cannot be patented according to US Patent Law.

See, Microshaft, and other software companies who support the existence of software patents, game the system by defining software as an end product that is patentable because it includes the hardware on which it runs (a system and method). This is, in fact, not acceptable, because, regardless of the fact that a computer is doing the processing at an accelerated rate, a human could do that same processing, thus it is a mathematical algorithm and not an end product.

This is why most companies dislike software patents, because software patents are a dishonest end run around patent law that was legislated specifically to prevent patents like this. Most only participate because the few that like software patents will take over the industry if they don't.