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Microsoft: invisible patents as a uniform
By Scott Bradner
Fortune magazine thought the story was important enough to put above the magazine's name on the front cover of the May 28, 2007 issue: "Microsoft takes on the free world." This time, unlike in too many cases, the banner headline actually matched the contents of the story. The article makes it clear that Microsoft thinks it's again time to trot out its Fear Uncertainty and Doubt (FUD) campaign against Linux. This edition rings as hollow as the previous road trips.
Every now and then Microsoft starts frothing about Linux stealing Microsoft intellectual property rights (IPR - i.e. patents). (See Quality of threats rather than quality of software http://www.sobco.com/nww/2004/bradner-2004-11-29.html) Law professor Eben Moglen has named this periodic frothing "Microsoft's 'be very afraid tour.'" (http://www.redhatmagazine.com/2007/05/14/summit-2007-eben-moglen-on-microsofts-summer-of-fear/)
Fortune interviewed Microsoft general counsel Brad Smith and licensing maven Horacio Gutierrez for the article. Fortune quotes Gutierrez as accusing the Linux community of knowingly stealing Microsoft patents: "This is not the case of accidental unknowing infringement. There is [sic] an overwhelming number of patents being infringed." It turns out that Microsoft thinks that 235 is that overwhelming number but refuses to list the patents so we just have to take their word that the patents exist and are infringed. I will admit to being a bit confused by this dual view - on one hand the Linux community is knowingly ripping off Microsoft patents and thus must know what they are stealing and on the other Microsoft will not say what they claim the Linux community already knows. A puzzle at best.
There is another company that claimed the Linux community was stealing its IPR. SCO once claimed that there were millions of lines of its code in Linux and when push came to shove they could only point to 326, most of which seem to be definitions in header files. I have no reason to think that Microsoft can count any better than SCO can. Microsoft could easily prove me wrong by providing a list of the patents and claims but it's far better for their FUD campaign to not say. It is very likely that tons of prior art would be found in days after any such a listing, particularly considering the widened definition of prior art provided by the US Supreme Court. (see How do you spell patent relief? http://www.networkworld.com/columnists/2007/050907-bradner-patents.html)
By not saying what patents they think that Linux infringes Microsoft makes it clear that they are not actually interested in stopping Linux from using Microsoft IPR. I expect it would take the Linux community a few months at most, and likely only a few days, to work around the Microsoft patents if that was what Microsoft wanted. It is clear that Microsoft would like to kill open source software. They clearly see it as a threat to their bread and butter, as it is. In that desire they are emulating SCO. Maybe Microsoft has come to the conclusion that if it wants some dirty deed done it has to do the dirty deed itself rather than trusting what has turned out to be an unreliable agent in SCO. (See http://www.eweek.com/article2/0%2C1895%2C1499812%2C00.asp)
In the article Microsoft CEO Steve Ballmer specifically did not rule out emulating one of SCO's dumber moves of suing Linux users directly. Some Linux users may be protected because, as part of its FUD campaign, Microsoft entered into a patent swap deal with Novell. According to Microsoft Novell agrees that Microsoft has valid patent claims against Linux but that the deal will keep Microsoft from suing any Novell Linux customers. Novel does not agree with Microsoft's characterization and claims that they do not agree that Microsoft has patents that Linux infringes. (See http://www.novell.com/prblogs/?p=336) It may not matter who's characterization is more accurate because a feature of the Microsoft / Novell deal may render all of Microsoft's threats moot. (See http://www.groklaw.net/article.php?story=20070518124020691.)
My first thought when I saw the Fortune article was that Vista must be tanking and Microsoft decided they could not achieve success in an honest way by building good products and needed an alternative way to succeed. But Bill Gates has now announced that Vista is a big success so I have no idea why Microsoft seems to want to out do SCO in the sleaze department but that is the road they are continuing to parade down -- wearing invisible patent as uniforms.
disclaimer: Students wear all sorts of things for commencement in a few weeks but I've not noticed invisible patents as an option (then again they would be hard to see) so the above discussion is mine not the university's.