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Microsoft Too Busy To Name Linux Patents? 236

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.
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Microsoft Too Busy To Name Linux Patents?

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  • by symbolic ( 11752 ) on Thursday May 24, 2007 @03:58PM (#19258811)
    Try physically impossible. You can't list what isn't there.
  • Hwhat? (Score:5, Insightful)

    by Adambomb ( 118938 ) * on Thursday May 24, 2007 @03:59PM (#19258821) Journal

    '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.
  • by grub ( 11606 ) <> on Thursday May 24, 2007 @03:59PM (#19258825) Homepage Journal

    Microsoft patents attorney Jim Markwith told OSBC it would be "impossible" for Redmond's bureaucrats to respond to the volume of responses that would result from disclosure.

    Do they really believe they'd have less work to do if they acted on their threats to deal with it in the courtroom? MS is just trying to keep the FUD of "using teh Linux may get you sued!!!11```" alive.

  • by Anonymous Coward on Thursday May 24, 2007 @03:59PM (#19258829)
    Not the list. There's a big difference.
  • by bedonnant ( 958404 ) on Thursday May 24, 2007 @04:03PM (#19258893)
    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.
  • by Catiline ( 186878 ) <> on Thursday May 24, 2007 @04:03PM (#19258897) Homepage Journal
    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>
  • by N3WBI3 ( 595976 ) on Thursday May 24, 2007 @04:08PM (#19258981) Homepage
    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..
  • Typical Failure. (Score:5, Insightful)

    by twitter ( 104583 ) on Thursday May 24, 2007 @04:09PM (#19259013) Homepage Journal

    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.

  • by Interested Bystander ( 1106793 ) on Thursday May 24, 2007 @04:24PM (#19259233)
    So this would be a case of "Ignore the man behind the curtain?"
  • by Anonymous Coward on Thursday May 24, 2007 @04:28PM (#19259277)
    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.
  • by RichMan ( 8097 ) on Thursday May 24, 2007 @04:28PM (#19259293)
    At some future time Microsoft will press an existing patent against someone. The first defence will be Estoppel []. 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
  • by Crazy Taco ( 1083423 ) on Thursday May 24, 2007 @04:32PM (#19259349)

    Vista took too long to develop, does not work and is not selling.

    Whoa whoa whoa. Where are you getting all this? Yeah, Vista took a long time to develop, I'll give you that. But where do you come off immediately following that up by saying it doesn't work? I haven't had one crash or error since I started using it months ago (right after it came out). It works perfectly, and it has some great internal improvements (WPF, WCF, WF) that developers love and that will let us make better programs. And saying it isn't selling? It may not be selling as much as Microsoft had hoped/predicted, but saying it isn't selling is just flat wrong. The fact is, most software houses would kill to sell as many copies as Vista is selling.

    Office is being escaped by real standards based productivity apps which can no longer be fought off.

    Again, where do you get this garbage? Are you a troll? Office 2007 is actually crushing everything else. It is making people excited about an office suite again (which is pretty amazing, actually). Again, I've been using it for months and it is a VAST improvement over all previous versions of MS Office as well as all other office apps out there. Once you get used to the interface, it is just better by any measure you use. More intuitive, quicker to use, easier to find/understand power features, takes less mouse clicks to do things, gives real time previews of changes, etc. It makes openoffice look like something from the last decade. And as for standards based files, the new office files are open standards, and better because they also zip themselves up to save space. How many of the open standards you are referring to do that? And how average users can actually open all these open standards you say are crushing MS. You just try giving an open office document to a sample of the general public and see how many can open it. 95% of them can't. So get a clue: It doesn't matter that a standard is open if almost no one has software that uses it. What matters is having an open standard that everyone is ALSO using (which will shortly be the case with the MS standards, given the brisk selling pace of Office 2007).

  • by niceone ( 992278 ) * on Thursday May 24, 2007 @04:40PM (#19259497) Journal
    ...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".
  • by wrook ( 134116 ) on Thursday May 24, 2007 @05:05PM (#19259943) Homepage
    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.
  • by codemachine ( 245871 ) on Thursday May 24, 2007 @05:12PM (#19260069)

    Office 2007 is actually crushing everything else. It is making people excited about an office suite again (which is pretty amazing, actually).
    I have yet to encounter anyone who was excited about Office 2007. Most people don't want to relearn a new interface, and quite frankly, had everything they needed already in Office 97. What I do see is a lot of converts to and NeoOffice. The rest choose Office 2003 or earlier, or MS Office for Mac.

    Even in the universities where every version is free, people are often choosing the older versions. I would have to think you'd have to be a huge MS fanboy or an astroturfer to actually be excited about using Office 2007. I'm sure these people exist, but their view of the world is distorted. They still see every new version of Microsoft's OS and Office Suite as the best thing since sliced bread. Whereas in the real world, you're seeing a heck of a lot more Apple machines, and a lot of hesitation shown by regular users when talking about Vista.

    I'm sure developers tied to the MS platform may not like all of this, and may even be blind to the situation entirely, but it is what is happening out there. I almost hope MS is blind to this as well, but they're sure acting scared, as if they know they're in trouble.
  • by artgeeq ( 969931 ) on Thursday May 24, 2007 @05:13PM (#19260095)
    Couldn't they let the rest of us know about SOME of the patents? How is that administratively impossible for the biggest software corporation?

    If it is impossible, then doesn't it seem like there is something really wrong here? Isn't a patent supposed to be tangible enough to warrant a claim or some sort? Then, how can it be impossible to list what the patent violations ars?

    One more possinle naive question: didn't Linux borrow heavily from UNIX, much more so than from anything Microsoft has done? And didn't UNIX predate Microsoft?

    I am more baffled than ever.

  • Red Scare (Score:2, Insightful)

    by KC1P ( 907742 ) on Thursday May 24, 2007 @05:30PM (#19260411) Homepage
    Didn't Joe McCarthy use the exact same tactic in the 1950s? Claim you have a list but then don't let anyone see it? Worked out great for him, he's one of the most beloved figures in US history! Where'd I put my my "Tailgunner Joe" T-shirt...
  • by LWATCDR ( 28044 ) on Thursday May 24, 2007 @05:45PM (#19260617) Homepage Journal
    "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 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. 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. isn't better than Office. It is good enough and free. I keep hoping that someday will be better than Office but it just isn't yet. What it is is good enough, has an open document format, and free.
  • by idontgno ( 624372 ) on Thursday May 24, 2007 @05:57PM (#19260827) Journal
    Odd. My Oracle instance is complaining that ID is an unknown identifier.

    Now, if you know the table structure, and ID is a valid column name... OK, I buy it. But this is Microsoft! "count(*)" works even if you have no idea of the row structure, which is precisely where Microsoft is.

  • Re:Hwhat? (Score:4, Insightful)

    by Petrushka ( 815171 ) on Thursday May 24, 2007 @06:05PM (#19260991)
    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.
  • Double strawman (Score:3, Insightful)

    by rewt66 ( 738525 ) on Thursday May 24, 2007 @06:49PM (#19261707)
    It's not just that we dislike software patents in general (though we do). We also dislike FUD, and we dislike lies.

    Microsoft says that Linux infringes on a bunch of Microsoft's patents, but they won't tell us which ones. There's no attempt to present an issue and get it cleared up. There's only an attempt to tar Linux as publicly as possible with the "patent infringer" brush while providing nothing concrete that can be refuted. That's FUD.

    Microsoft says that it can't tell us what the patents are that Linux infringes because it would be too much work. But they can count them and tell us what the number is. That excuse sure looks like a lie to me.

    Being hostile to FUD and lies is not the same thing as being in favor of infringing Microsoft's patents, and that's why the original post was a strawman. If Microsoft tells us what the patents are, we'll either break the patents or fix the code. Until then, there's really nothing to talk about, except to tell Microsoft to put up or shut up.
  • by HermMunster ( 972336 ) on Thursday May 24, 2007 @10:13PM (#19264089)
    No, the real question is whether Microsoft will get away with extorting patents out of others with these indefensible patent lies.

    Microsoft has been stealing IP, and now some very important cases are over and they find themselves on the loosing end of the stick. They still need to steal the patents to keep up since they are not innovative themselves. What they were doing is outright stealing patents and hoping they'd be able to win in court.

    Patents cross-licensing are like a web that criss-crosses the globe. Everyone does it. Open source is the exception. The initiative that Novell co-founded with IBM and others is designed to allow patent exchange and to help protect those participating from patent lawsuits. Microsoft is one of the boys that aren't allowed to play the game. Microsoft is the shunned rich kid bully being beat up by a group of Boston Southies. They aren't going to get into the gang no matter how much they threaten the Southies with their money. They are just going to get beat up more.

    This initiative was somewhat thwarted by the agreement of Novell and Microsoft. It effectively gave them a lot of patents without having to even give back to the open source community. This isn't to say that they were taking the open source patents from Novell; it is that they were trying to divide and conquer.

    So, this group of companies holds patents that Microsoft wants and needs to stay in the game. The GPL v3 doesn't prohibit them from entering into such an agreement, it just makes impossible to indemnify ONLY a subset of the open source arena.

    Microsoft wants the patents because they've been loosing in court when they outright steal them. They are not telling anyone what the violations are because they are like the rich kid who says "it's my chessboard so I am the only one that can know which moves are legal. If you break a rule you loose the game."

    Microsoft is like a big Oil company that says that if you use the gasoline of one of its competitors you could be sued, and in fact, anyone, including the manufacturer of the cars, can be sued. They say this because the competing Oil companies may have used some of their IP when they refine gasoline. What they are not telling anyone is which portion of the refinery process is in question and are not providing a way to allow the competing oil companies to change their refinery process or even to challenge that IP they claim is violated.

    Bringing that down to real world terms shows how ridiculous their claim is. You are a thief, you have stolen from them, but they won't tell you what you stole nor give you a chance to correct yourself rather than continue to perform that alleged theft.

    Someone suggested a few days ago that everyone that is an open source developer send a certified letter to Microsoft demanding to know exactly which IP was in violation. If Microsoft disregards the letters then they provide a good affirmative defense. If Microsoft does respond then we'll know exactly what to do to stop, or we can challenge the claims. Either way Microsoft is overwhelmed with paperwork.

    If you decide to send the certified letter you should set a date by which they must respond to you. That will ensure that you tried, you gave them a reasonable amount of time, and they did not provide you with a way to resolve the issue.
  • by Caspian ( 99221 ) on Friday May 25, 2007 @12:50AM (#19265493)
    I hate Microsoft, but I have no doubt that these patents do exist, and that GNU/Linux systems do violate the patents. This isn't a problem with GNU/Linux, it's a problem with the patent system. With all the ridiculous software patents granted every year (and most/all are), there is absolutely no doubt in my mind that hundreds, if not thousands, of Microsoft's rubbishy patents are, in fact, violated by GNU/Linux systems.

    Then again, the same goes for Apple, Google, Compaq, Dell... they all violate each others' patents, and when company X gets pissed off at company Y, they whip the patents out and sue. Patents are no longer used to "protect innovation", they're used as stockpiles of weapons to attack one's enemy-of-the-moment with.

    This isn't so much evidence that MS is evil (honestly, do we need more evidence of that?), but rather evidence that the patent system is evil.

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