Microsoft Too Busy To Name Linux Patents?

bob_dinosaur writes "According to The Register, Microsoft's Patent Attorney Jim Markwith told the Open Source Business Conference that the reason they hadn't named the supposedly infringing patents was that it would be 'administratively impossible to keep up' with the list. 'According to Ramji, the executive tasked with the difficult job of straddling Microsoft's growing support for open source in server and tools, and aggressive and unpredictable statements from management on patents, made a jaw dropping attempt to explain away the Forbes article. "The reason we disclosed that, is because there was a request for transparency following the Novell deal Iast November. This was a response to that transparency," Ramji said. It was at that point the OSBC audience erupted.'" That transparency apparently extends to multiple levels. ZDNet is reporting that Novell will share the details of its agreement with Microsoft sometime in the near future.

Administratively impossible?

Try physically impossible. You can't list what isn't there.

Re:Administratively impossible?

it seems suspicious that they can count them, yet cannot identify them. "yes, 235 of them, but we have no idea which ones, and where they are. it would be too difficult to find out." yeah right.

Re:Administratively impossible?

Maybe it started like this:

NOOOOoooobody expects the Ballmer Inquisition! Our chief weapon is patent nr 1,563,245...1,563,245 and 934,189...934,189 and 1,563,245.... Our two weapons are 934,189 and 1,563,245...and 2,100,003.... Our *three* weapons are patents nr 934,189, 1,563,245, and 2,100,003...and 2,100,004.... Our *four*...no... *Amongst* our weapons.... Amongst our weaponry...are such patents as 934,189, 1,563,245.... I'll come in again.

Re:Administratively impossible?

Try physically impossible. You can't list what isn't there.

Linux and other Open Source software projects almost unquestionably transgress patents owned both by Microsoft and others. This is not the real issue. The real question is, are these patents defensible? Or would they fall due to "prior art" or other well known / common patent flaws? And, if Microsoft and other patent holders revealed OSS patent transgression, would there be practical work arounds? Probably many of the patents would fail if challenged.

One reason Microsoft and other patent holders might not want to reveal the specific patents is that the OSS movement will challenge them rather than licene them, while many commercial groups will be inclined to do the opposite, license them and pay the patent holders a fee.

How'd they know there were 235?

It's funny, because that figure has three significant figures. They didn't say "over 200" or "about 230" but that there were 235 patents.

So, the only way to count them was to have a list. A list they could very easily share with us if they wanted to. Of course, as everyone else has said, we'd code around them, challenge their validity, etc. And no, it wouldn't matter if the list wasn't 100% correct. It'd just be useful to say that, hey, we really don't infringe that one, but whatever, while fixing all the ones we might infringe upon with OSS.

Of course, that's exactly what they don't want us to do. They don't want us to stop their FUD. And therein lies the problem: promissory estoppel (they promised not to sue), laches (they knew about the infringement and did nothing), unfair competition and anti-trust actions, as well as a whole host of other things you'd see a real lawyer argue if they actually tried to bring a patent infringement suit. Of course, IANAL, so get one if you ever want to make claims like those in court.

BTW, you know why I think they gave that promise not to sue? To keep any of us from bringing a declaratory judgment action against them. I seem to recall that case law is mixed on that point, but it gives them some wiggle room to avoid having anyone bring a lawsuit over this. I wouldn't be overly surprised if Red Hat or someone had their lawyers send a nasty letter to Microsoft over this and they realized that they had to cover some ass and pump out a little more PR as a smokescreen to hide their backpedaling on this issue.

Don't get me wrong, they'll probably still use the FUD they've created as another way to strong-arm vendors, but I bet they'll do it a little more quietly and they'll do it to people they already have some hold on.

Microsoft didn't come up with that number

The number 235 didn't come from any Microsoft internal research or MS funded research. It came from an independent research paper that examined patent vulnerability of various software. Microsoft saw the paper and decided to run with it, saying that the paper proved that "Linux violates 235 of Microsoft's patents".

Then the paper's author spoke out, saying that MS was misrepresenting the results. First, it was 235 potential infringements, in part because none of those 235 patents had been tested in court and could be invalid. Second, these were not all Microsoft's patents.

Frankly I think he was far too kind. Microsoft turns "potential" into "actual", and "235 patents" into "235 of our patents". That's not "misrepresenting", that's fucking lying, especially when it comes to implicitly claiming ownership of patents which are not theirs.

Oh yeah, and thirdly the author said that Linux was not atypical compared to closed source software in how many patents it potentially violated. The fact is, and one of the conclusions of the study, was that software patents are such a minefield that pretty much every piece of software potentially violates some.

This was all on /., I think about a week ago. I'll let someone else dig up the link for some karma.

By the way, this probably means that the best source for finding out which patents Linux hypothetically violates would come from the original paper.

Re:Microsoft didn't come up with that number

Whatever, here are links: The slashdot article [slashdot.org], and the first post in it links to this article covering the paper author's rebuttle. [eweek.com].

I can't help but notice how the numbers keep changing. The study says 283 patents, Balmer at one point said 228, and now it's 235. Frankly since they aren't substantiating any of these claims anyway I think MS just makes up a number to keep people confused. Maybe they'll think that further research turned up another 7 patents, even though it's still all based on a completely braindamaged intepretation of someone else's work.

Re:Microsoft didn't come up with that number

Mod parent -1, Wrong. That study not only 1) says the number of patents is 283, not 235, but 2) isn't talking about just Microsoft patents, that study was talking about all software patents, and 3) that study came out 3 years ago.

http://news.com.com/Group+Linux+potentially+infrin ges+283+patents/2100-7344_3-5291403.html [com.com]

Re:Administratively impossible?

You can't list what isn't there.

Sure I can:

• Unicorns
• Fairies
• Leprechauns
• Valid Software Patents

Open Letter to Jim Markwirth and Brad Smith:

This announcement seems almost like a tailor-made response to my . But I'm not presumptuous enough to believe that Smith even *read* my e-mail to him or the posting on Slashdot, since the coward hasn't bothered to reply. But I'm going to pretend and treat it like one with an open reply

"Most people who are familiar with patents know it's not standard operating procedure to list the patents," Markwith said. "The response of that would be administratively impossible to keep up with."

Dear Messrs. Smith and Markwirth,

Right. It's not standard operating procedure to list the patents when you are claiming patent infringement in order to use it as a weapon. You declared war on the Free and Open Source Software Movements, you're the ones pointing the gun, so c'mon. It's time to put up or shut up. Sue the community, sue Red Hat, sue Linus, sue the Mozilla Foundation, the Free Software Foundation, and sue Sun. Sue IBM. Sue me! Maybe my little project violates your patents! Let's have it! SUE US!

Stop this cowardly spreading of FUD. I declare that the Emperor has no clothes. Take us to court. You know we'd sue you if you violated the GPL, so let's have it.

Or do you, as I said before, are you afraid? What is it? Fear that you'd have all of your patents thrown out of court? Or maybe you fear that the industry would turn against you? No, I think it's all those things, but most of all it's that your bluff would be called and you'd have to stop spreading FUD. You know you can do more to damage Linux's reputation by sullying its good name with lies and innuendo about patents that are either obviously invalid or non-existant.

We have a saying where I come from: "Don't let your mouth write any checks that your ass can't cash!"

Put up or shut up. Sue us!

Hwhat?

'administratively impossible to keep up' with the list

And yet it was NOT administratively impossible for them to verify that said patents were being infringed upon? Does ANYONE actually think that makes any sense whatsoever? Any patent lawyers or business people well versed with such situations able to clarify this? Or is it the idiocy it appears to be.

I realize that there would be a lot of paperwork involved in defending those patents once groups start having to verify with MS as to specific infringements, but isnt this overhead a cost of doing business concerning protecting your IP? Can companies infringing on patents that companies refuse to disclose information for even be considered to be infringing?

Ignorance of the law may not be a defense, but being told that you CANT know what the law is sure seems different. Mind boggling, unless i'm missing something key.

Perspectives are necessary, someone point out what i'm missing.

Re:Hwhat?

What's wrong here, is that Microsoft thinks that IT bosses, are all PHBs and it would be very easy to spread FUD amongst them.

When I started as a developer 10 years ago, may be this was the case, my bosses then had absolutely no clue what programming was all about (I am not talking about a specific programming language, or paradigm, just programming or software engineering in general)).

These were the type of people, who felt the sand under their feet, slipping away every time there were concerns regarding the technology they were managing. And the reason was obvious, they DIDN'T KNOW about the technology they were managing.

But now it's a very very different world, people who were senior programmers then, are now managers, and as such are in much better shape to judge the technologies they work with.

So in retrospect, Microsoft may have had luck in these kind of FUD tactics, 10 years ago, but that won't work now. Sure there will be some, who will fold and pay up, but then most of the competent people in the industry that I know, are saying...."Hang on a minute,, there is something very fishy about these claims"

I'm too busy to name Microsoft Patents

Microsoft is in violation of 100,000 patents that I own, but I'm too busy to document even a single patent.

And naming even a single patent would be just spreading FUD because, as I've said, I'm too busy now innovating to sue at this moment. If the infringing code could be rewritten, I'd say something because I know Microsoft respects IP and I don't want people violating my IP unintentionally. But since the code it can't be rewritten without using my IP, so I'm actually doing Microsoft a favour by keeping quiet.

But tell you what, since I know even mentioning Microsoft's violation can cause uncertainty, I'll license each of my patents to Microsoft for the low low price of 1 dollar per patent, payable once every month. As stated, I'm too busy to sue anyone using Microsoft products at the moment, so Microsoft customers are safe...for now. But who knows what will happen to people who by unlicensed Microsoft projects in the future.

Re:Hwhat?

Your assessment may be completely correct, but I'd suggest their tactic may be more viable than you think: that is to say, that it doesn't matter whether their FUD persuades the PHBs or not. The real prize, it seems to me, is persuading companies' legal teams.

Re:Hwhat?

As far as I can tell you're not missing anything. Patents aren't like trademarks in that you have to defend them to keep them. If in some parallel universe Microsoft said, "Linux, you're infringing on the following patents:... but we're not going to sue you today," it would in no way impair their ability to sue whomever they wanted the next day. In fact it would strengthen future cases, because they could point to the notification and make arguments about willful infringement and treble damages.

What has (probably) happened here is some MS patent office guy essentially did a freedom to operate study as if he were representing Linux, he copied too many people in on the email with the findings which probably said something like, "We find that Linux could be infringing on as many as 325 Microsoft patents, however, the validity of these patents with regard to obviousness and/or prior art is debatable."

Basically another poster nailed it, when he said that the reason that microsoft isn't naming patents is so that they can license them to other "infringing" commercial entities. Had they named them, even without a suit, a slew of legal arguments contradicting Microsoft's position would be forthcoming shortly and commercial entities would have the option to use the OS legal arguments instead of feeding the beast.

Impossible to keep up with the response.

Not the list. There's a big difference.

Re:Impossible to keep up with the response.

You could cover all the responses at one by simply publishing the patent numbers being infringed upon. IBM should file a suit similar to the one RedHat brought against SCO.. Im sure it wont happen but it would be nice to see what MS has..

Headline is wrong

Let me fix that for you:

Microsoft Too Busy Backpedaling To Name Linux Patents?

What a bunch of crap

Microsoft is too busy to figure out the list of infringing patens eh? then how did they count the exact number of infringing patents? if this number didn't come out of a countable list, perhaps, just perhaps, they must be pulling it out of their collective arse...

Vista & Word

It's just that, when using the bloated Word with the equally bloated Vista, they're going to need a year or two to get the list completed.

Could this bite Microsoft later?

Could someone claim in court that they thought it would be ok to violate Microsoft's patents, since they apparently have announced that they don't plan on enforcing some of their patents? And are there time limits on enforcement after a company knows of infringers, or does the ability to enforce them never expire? If there is a time limit, that could seriously bite them later too.

p.s. How about just the top five then? Certainly that won't take too long, right?

Yes, Lots of Administrative Overhead

Actually, despite what so many other people may think, I for one say Microsoft is 100% right in their reasoning: this list might be just too hard to administer.

After all, how many hours do you think it would take for the open source software to re-write their code to work around a patent after it was added? The effort of removing patent after patent is just more than Microsoft could ever bear.&lt/sarcasm>

Typical Failure.

Impossible and contradictory tasks, answers depend on who you ask, infighting, these are the hallmarks of a company in trouble. Vista took too long to develop, does not work and is not selling. Office is being escaped by real standards based productivity apps which can no longer be fought off. Those are their flagships and their money makers. GPL 3 prevents them form stealing free software, so they will soon have to compete honestly. Not only won't they be able to grow as promissed, their revenues will collapse.

This is good because M$ is an enemy of free software and has made trouble for everyone else far too long.

Re:Typical Failure.

"Vista took too long to develop, does not work and is not selling."
Yes, no, and well sort of yes and sort of no.
Vista isn't selling like 95 or XP did when people where really excited about this new wonderful version. People are using it and more will when DX-10 games are out and are considered must have.
Vista works. It does work. It isn't really any better for 99% of all end users than XP and rankly it is still a down grade for many. It runs needs more memory and electricity to do the same job as XP does. It isn't a great value that is for sure.

"Office is being escaped by real standards based productivity apps which can no longer be fought off. "
Not really. While I do use OO.org what is killing Office sales is Office. Office 2000 and Office 2003 does everything that you need an office suite to do. Office has been good enough for years now and here is the real dirty secret that Microsoft hates. Software doesn't wear out. Why do you think Microsoft really wants to go with the software as a service model?
XP is what is hurting Vista and Office is that is hurting Office. The old versions of both are good enough. Frankly for most people you don't need a computer every 3 years unless your a gamer so those are now good enough as well so fewer sales of new systems with Vista.
OO.org has started to make a dent with Governments because they hate the idea of their documents being controlled by a single source vendor. Which frankly is a brilliant idea IMHO. But what we are seeing is a mature market where the software is good enough to not rush to upgrade.

Just to be fair here is the ugly truth for Open Source. OO.org isn't better than Office. It is good enough and free. I keep hoping that someday OO.org will be better than Office but it just isn't yet. What it is is good enough, has an open document format, and free.

Poor Ramji

> [...] Ramji, the executive tasked with the difficult job of straddling
> Microsoft's growing support for open source in server and tools,
> and aggressive and unpredictable statements from management on patents [...]

They should hire Tony Snow, he can do that on mere brain stem functionality.

Nobody will believe that

At some future time Microsoft will press an existing patent against someone. The first defence will be Estoppel [wikipedia.org]. Microsoft is once company that cannot claim it did not have the resources to defend itself. If Microsoft fails to defend at this point, especially after making the pubclic claims it is effectively estopped from raising those claims in the future.

IANAL but I like to try on the hat

Hey, try this excuse!

My dog ate the patent list.

That's actually more believable.

After an sccidental pentathol shot...

...Microsoft's Patent Attorney explained that the reason they hadn't named the supposedly infringing patents was that "we know what the U in FUD stands for".

The synopsis has it wrong

Sigh... There is a bit of a misrepresentation of what was said. The MS lawyer actually said, "'Most people who are familiar with patents know it's not standard operating procedure to list the patents,' Markwith said. 'The response of that would be administratively impossible to keep up with.'"

This is significantly different than "it would be 'administratively impossible to keep up' with the list."

I agree with the lawyer that the response to revealing the patents would be enormous and probably too difficult to keep up with. There would be all kinds of questions like "*How* does it infringe?", "Will this change help?", "What about this prior art?", etc, etc. There are thousands of Linux/GNU/whatever developers who are implicitly implicated by their accusations. Many of these are associated with large organizations which have teams of lawyers themselves. There are probably only a few lawyers dealing with this issue at MS. Thus, it *would* be administratively impossible to handle the response.

My feeling is that if you don't want to deal with the response, then shut up. But I guess they don't agree. But it is an interesting comment none-the-less.

BTW, I'm not being sarcastic in this post, but it's pretty difficult to tell given the absurdity of the issue.

There is no spoon...

Do not try and list the patents... that's impossible.
Instead only try to realize the truth... There is no list.

That's going to be my answer to the BSA

We're an entirely Linux/OS X shop here, however.

If MS/BSA ever decides to try an audit us, my response isn't going to be, "We don't use MS products, period."

My response is going to be, "It would be administratively impossible for us to list the software packages in use throughout our company."

Then, when they kick the doors in, and find not a spec of MS software, our lawyers will have a nice round of settlement discussions with their lawyers.

So... they basically gave Linux te go ahead?

So let me see here...

Before:
Nobody knew how many patents they may hold
Nobody knew if they would use them
Nobody knew if they would hold up in court

After:
It is obvious they can't do anything
They have more or less agreed not to sue anyone
If they don't name the patents soon you an use it as a defence

So essentially they have just managed to clear Linux from the FUD surrounding their patent portfolio, make it obvious to business around the world they don't have the balls to do shit with it, and pretty much offered everyone a great defence against their entire patent portfolio. I mean... wow, just wow. I knew the FUD against Linux would go away soon, but that Microsoft would do it themselves without even entering the courtroom... wow. I guess the Vista slogan was right after all...

whats impossible is..

Im sorry, its administratively impossible for me to keep track of all the bullshit coming out of Redmond.