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.

Is this just repeating Ravicher's 2004 rebuttal?

Back in November 2004, Dan Ravicher complained to Steven Vaughan-Nichols [eweek.com] that Ballmer had misread his patent study, so I'm not sure that this is 'new' news.

That Register link is dead (although even Google News indexed the article. wtf?) But many articles are repeating Ravicher's old remarks: Ravicher says his report proves the opposite of Microsoft's claims [itbusinessedge.com], The author of that report disowned Ballmer's remarks [out-law.com], etc.

Re:Is this just repeating Ravicher's 2004 rebuttal

From the main article, "have far more defensive than offensive value in the marketplace today" and from the parent post "MS. They are not used to being in competition"

Microsoft could well be using this "patent news" in a very underhanded, but very tactical way to scare corporations away from adopting open source tools and/or OS, in an attempt to tip the balance so corporations buy Vista. Non-technical Corporation bosses would be afraid of this kind of underhanded sabre rattling tactic of Microsoft, as they would fear wasting time and effort on Linux and so go the "safe" route of using Microsoft tools & OS. ("Safe"=What M$ tell them is safe).

Its blatant scare tactics hidden behind a supposed news story, which Microsoft's own PR departments created the news story.

Bad link?

The first link doesn't seem to be valid. Shame, cause I was interested.

Microsoft strikes again

Seems like they sued El Register too! http://www.theregister.co.uk/2007/05/16/ravicher_m icrosoft_oss_patent/ [theregister.co.uk] 404! How far are they going now! The sky is falling the sky is falling

No matter what MS says

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:No matter what MS says

"What's more, Linus more or less dismissed the claims as nothing more than FUD."

But I thought Linus made a point of not investigating possible patent problems with Linux so that he couldn't be accused of deliberately violating them. If he hasn't looked into the patents, how could he possibly know that MS's claims are FUD?

Of course, no matter what he might actually believe, Linus is obviously going to call it FUD just as Gates will obviously say it isn't. You're not going to get an unbiased response from people who have so much to gain or lose, so why bother to ask? It's like asking a politician "Do you think you can win?". You already know what the answer will be.

Re:No matter what MS says

But I thought Linus made a point of not investigating possible patent problems with Linux so that he couldn't be accused of deliberately violating them. If he hasn't looked into the patents, how could he possibly know that MS's claims are FUD?

That's an easy one. If they weren't just FUD, Microsoft would detail the patents and the infringement. This is directly analogous to the SCO case, where rather than showing which code was copied they just claimed that a bunch was.

If you're truly being harmed by someone's infringement, you have a legal duty to let them know as soon as possible so that they have the opportunity to quit infringing. If, on the other hand, you're using FUD to muddy the waters...

Re:No matter what MS says

Easy. Microsoft is claiming 240+ plus patents are infringing on Windows.
Later they claim less than 50 are in the Linux kernel with the other in the GUI and OpenOffice.
That right there is FUD since OpenOffice isn't part of Linux and frankly more people use OpenOffice on Windows than on Linux.
Also Linux doesn't have a GUI. Gnome and KDE are not part of Linux and run on other OSs as well as Linux.

Finally they refuse to what patents are infringing but say the will show them to known Linux users and some distro makers.

Well I am a Linux users which is no known. Show them to me.
Microsoft will not show them because they want to use them to bet money from companies that use Linux or sell Linux. If they show them then they would bet challenged or written around.

That is FUD.

$699

The queue starts here folks, please have your $699 ready and don't shove.

Is Schwartz alluding to SCO and Microsoft.?

With business down and customers leaving, we had more than a few choices at our disposal. We were invited by one company to sue the beneficiaries of open source. We declined. We could join another and sue our customers. That seemed suicidal. We were offered the choice to scuttle Solaris, and resell someone else's operating system. We declined.

It seems like Jonathan Schwartz is alluding to Microsoft and SCO here, but he seems to be referencing a third company as well. Any ideas?

The "defensive patent" theory is flawed

"Today, what companies worry about isn't asserting their patents against other companies, but maintaining their freedom of activity."

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.

Major correction for you

"there is almost no difference between this "everyone has defensive patents" world, and the "no one has any patents at all" world. In both cases, companies that hold a bunch of patents are free to operate as they see fit"

See the important difference. It's the *thousands of companies who don't hold a bunch of patents. They are not free to operate as they see fit in the former case, and in fact live in a Damoclean situation where their continued survival is dependent on being below the radar of the patent oligarchy. In the latter case, they are free to operate as they see fit.

Or did you have some plan for providing these defensive patents to "everyone"?

All patents are offensive, always

There is no such thing as a defensive patent; that just does not make any sense at all. The whole point of a patent is offensive; it is a restriction placed upon the rest of humanity that they may not do something. It does not matter whether anybody gets sued, the mere existence of the patent has already done the most harm. Suing someone is just looting the body after you've already killed them.

And it is not just a software-only issue, patents are just as dangerous in many other fields. For a much deeper understanding of how patents are harmful, please read Against Intellectual Monopoly by by Michele Boldrin and David K. Levine. http://www.dklevine.com/general/intellectual/again stnew.htm [dklevine.com]

This is quite a long read, but it is very important.

there's a huge difference

So, in that context, there is almost no difference between this "everyone has defensive patents" world, and the "no one has any patents at all" world

There's a huge difference.

Existing companies with big portfolios and cross licensing agreements have a nice oligopoly, whereas new entrants have a really hard time to enter the market.

Related news

And in a related news, US companies were recently granted patents for some ancient Yoga postures from India.
Shows how inefficient the patent granting process is. MS patents could be similar prior art.

22 of my patents are being misused by Microsoft

22 of my patents are being misused by Microsoft. 18 of them are being misused by Apple and 12 of them by Linux. I will not tell you what those patents are since it would make me a millionaire and put all users through lot of pain.

if what they're basing their claims on...

is the report by Ravicher titled 'Open Source Risk Management', thats mentioned here [theinq.net], then this is slander.

Microsoft reminds me.....

.... Of a poker player who is the short stack at the table taking what chips s/he has left and going "all in" with any two cards and hoping for the best. I suspect that barring a minor miracle, the outcome is going to be that they're going to loose all their chips (not to mention any credibility they have left).

Delaying tactic. Nothing more.

After digesting this issue for a couple days I have come up with this...

Intentionally or not, Microsoft has trained corporate America to wait until the first service pack or two before adopting their new operating systems. The new hardware specs for Vista will provide a further incentive for companies to delay the 'upgrade.'

Microsoft has come up with a short-term pump-up for Vista that was briefly referenced in another thread here and was supported by a friend of mine who is in CS @ a local university... students recieving free installs are being run through an e-commerce application with the price fields zeroed... which means they are being counted as sales. I wonder how many other individuals are recieving free licenses through this method for corporate evaluation etc...

Microsoft then releases public attacks to slow corporate adoption of competing products. In 9-12 months the market will naturally have reduced the overhead for upgrading to Vista and Microsoft will have time to release some major patches.

Profit!!!

Vista is not the only product they are using delaying tactics with. In 4th Qtr '06 MS dropped Virtual Machine licenses from $499 for corporate to $99 after announcing the delay of Viridian, their new upgrade.

Sad thing is... these tactics will probably work. Good thing is Microsoft does not appear to have a winning legal strategy. Not that they need one, but we probably won't be seeing C&D notices out of this.

I hope this is all that's behind this.

Regards.

Where's Novell fit in?

Have we ruled out the possibility that Novell could be working with Microsoft on this as a marketing campaign? Consider that "oh it's scary that we use Linux, but if we really need it let's use Novell because that's safe for us" could be precisely what M$ and Novell want you to think. I'll be the first to admit I know nothing of Novell's business practices, but business is business, and sometimes that means people play extraordinarily dirty. Honestly, I would absolutely love to be proven that this is wrong, but I suspect it will still remain a possibility.

RIAA vs Downloaders, MSFT vs Opensourcers...

As Sherlock Holmes once said...., "The parallel is exact!"

To understand that larger implications of taking your customers to court, MSFT need not look further than the RIAA. Hopefully Uncle Balmer will get the point before he goes down this path. I quite wrote what Jonathan Schwartz wrote about the implications... MSFT should focus on delivering a better product not taking people to court. This is going to end up being a distraction for a company already trying to chase the fading tail-lights of Google, Apple and Nintendo.

Or then MSFT may chose the RIAA route, we know how that story ended.... dominated by Apple.

-S

Groupthink?

Ever since MS made that announcement about the 250 some patents that Linux supposedly infringes on, there have been a number of articles on Slashdot pointing out the flaws in MS's argument. In addition, almost every single comment I've read essentially parrots TFA or previous articles. While I'm not pro-MS by any means, it would be nice if someone could find an article that argues from the other point of view. Essentially, I think we should really try to have a debate on the issue, rather than just continuing the groupthink.

Keep in mind that I don't personally agree with MS's argument. I just think we'd all benefit from being open minded and having an actual debate on the topic. This applies to all topics we cover, but this one struck me as particularly obvious.

Never sue someone with no money

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.

Does the end user pay?

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.

Isn't this what I just said ...

http://yro.slashdot.org/comments.pl?sid=234609&cid =19113477 [slashdot.org]

Please shower me with gifts, thank you.

The thing about defensive patents

A lot of colleges/universities also file defensive patents. The reason you file these kind of patents is incase of a situation like with the telephone. Someone else has the same/similar idea and beats you to the patent office...suddenly your on the other end of a cease and desist or worse. By not filing for patents you are risking lots of problems down the road. I understand this.

The flip side though is once someone realizes that, "HEY XYZ is using my patent! I could make money from licensing!" those patents often becoming offensive. Most often, especially in a case of small guy owning the patent, the infrining group will settle for some amount of money, out of court, and everyone walks away happy. When the big guys have them and the small guy does something wrong, then your screwed. It's the ole, "We have more money for lawyers than you do, so go out of business."

Oops

Balmer: but,,,,,
Gates: I always got what i paid for

The main MS patent, summarised

We claim:

• 1. A tubular structure made of various proteins
• 2. A sponge-like structure between the inner and outer walls of the tube
• 3. Means to introduce liquid under pressure into the sponge-like structure, and other means for removing the liquid
• 4. A means to attach the said tubular structure to the lower abdomen of a male human being
• 5. A means to connect the plumbing system described in Claim 3 to the interior plumbing of the human being
• 6. Means to cause the tubular structure to oscillate and expand on demand.

It will be appreciated by those skilled in the art that this invention will be of inestimable use to chief executive officers wishing to lay claim to exclusive access of their products to various markets.

Everything

Everything that can be invented has been invented.
Charles H. Duell, Commissioner, U.S. patent office, 1899

Edit: Everything that can be invented infringes on a existing patient, 2007

Solution

Clearly the solution to this whole situation is to have Microsoft play tic-tac-toe over and over again....

Create a wiki to destroy the patent system?

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.)

I have publicly challenged Microsoft to sue me

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]

Short-term victory

Yeah, MS is pulling a fast one, we all know that. But - it is working, at least right now. And tomorrow, the mainstream media will have forgotten. Today, the headlines are "Microsoft: Everything just stolen" and a Linux penguin in the article. Tomorrow, we will not read "Microsoft's patent claims debunked". We'll read about what celebrity goes to jail, which senator was found dead with a whore or that intelligent design is being discussed in the educational board of Backwater City.

It's a short-term victory. But in a world where stock market and mainstream media have an attention span measured in hours, more often than not that's all you need.

M$ obnoxious and vague? THAT's their only patent.

and they don't license it, either.

Sue them?

Just an idea: Why not have someone who has a bunch of code in any of the mentioned projects sue MS for libel, slander, whatever? Truth is a defense, so they'll have to lose that case or put the evidence on the table.

IANAL, but maybe someone who is can comment.

Interesting bit from Sun's CEO blog

"With business down and customers leaving, we had more than a few choices at our disposal. We were invited by one company to sue the beneficiaries of open source. We declined. We could join another and sue our customers. That seemed suicidal."

Gee, I wonder who those companies would've been?

Interesting bit of writing by Jonathan. However, I do wish it would read more like "don't even try it MS, or else", instead of a friendly warning that it'd be a poor business decision. But I guess they are partners and all, so I can't expect it to be as unfriendly as the days where Sun obsessed about MS instead of their own products.

Hot to get the details

Linus: Fine, you've agreed to a meeting, and you know what this is about.

BillG: Yup. So what are we guys gonna do. Maybe a little contract where each Linux user owes us $20 for patent license?

Linus: Oh yea, this is exactly what I had in mind! I like your sense of humor. No, I'm here to ask which line of code violates which patent. And get this fixed.

BillG: I'm not telling.

Linus: Oh yea? Ok. File kernel.c. Does line 1 infringe?

BillG: No. And I told you, I'm not telling!

Linus: Does line 2 infringe?

BillG: No.

Linus: Line 3?

BillG: No.

Linus: Line 4?

BillG: No.

...
...

Linus: Line 4032?

BillG: ...

Linus: Well?

BillG: ...

Linus: All right. I have a numbered list of all your software patents here.. So, does line 4032 violate the first patent?

BillG: No.

Linus: The second?

BillG: No.

Linus: The third?

BillG: No.

...
...

The real question...

The real question is who is Microsoft going to sue? The patent laws were drafted based on somebody copying an idea and selling it for a profit. The thinking being that nobody would spend time copying a product and giving it away for free. I don't think there are any precedents for this situation. I guess they could try to get an injunction against distributing the software but in the internet world the cat is already out of the bag. All this will do is drive the big companies out of the free software world, but whoopdie doo.

Ravicher article pulled

It looks like The Register has pulled the Ravicher article as the second link above now gives a 404. I wonder why. You can still read it in the the Google archive [72.14.253.104] though.

Re:M$ Balllmer and his FUDs

Like Hitler's speech, ballmer's speech is just like a good and beautifoul music but with crappy lyrics...

"ENTWICKLERS, ENTWICKLERS, ENTWICKLERS, ENTWICKLERS"