Little by little, Microsoft is opening the door to the room that holds its free and open source software (FOSS) strategy. The latest sliver of light, as noted in a Fortune magazine report, reveals the claim that FOSS violates 235 of Microsoft’s patents.
As characterized by the Fortune article, Microsoft is looking to take on the FOSS world by requiring royalties from distributors and users.
“Of the 235-odd patents out there, I’m guessing that some of them are infringed. I don’t know that, but it’s fairly likely,” David Jenkins, a registered patent attorney with Eckert Seamans, told LinuxInsider. “It’s fairly simple to infringe a patent, actually, and a person may not even be aware they are doing it.”
So Many Questions
Microsoft’s actions — and inaction — are both revealing and puzzling. In November of last year, the company partnered with Novell to deal a blow to the open source community. The two companies agreed not to sue each other’s customers over intellectual property violations and to work together to help Novell’s Suse Linux integrate better with Microsoft’s solutions. Microsoft bought some Novell “coupons” that it resells to its own customers, some of whom have purchased them as a way to stave off possible IP-related lawsuits.
The open source community sees this as an unnecessary capitulation from Novell. At the same time, many are angry at Microsoft for wielding its big stick in the first place.
Obviously, lots of organizations using FOSS haven’t purchased the coupons. Are they all open to potential Microsoft-led lawsuits?
“Until Microsoft chooses to specify the patents in question, I’d classify this as FUD,” Stephen O’Grady, an analyst for RedMonk, told TechNewsWorld. FUD is a sales and marketing strategy based on generating fear, uncertainty and doubt.
“The difficulty lies in who they’d seek damages from,” O’Grady noted, which makes many Microsoft FOSS efforts a contender for an FUD label.
“I don’t see where they are going with this,” Jenkins said. “Who they are going to end up suing at this point, most likely, is the people who would then … be forced to buy Microsoft products, which means they are essentially pissing off their future customers — which doesn’t seem like a great business model.”
A lot of open source software developers tend to remain anonymous, in which case it’s tough to identify the creator for lawsuit purposes. Even if Microsoft could nail down an offending software creator, the company could in many cases find it difficult to collect damages from the violator. How does a software mega-corporation collect from, for example, a debt-laden college student with a negative net worth?
Is It All Just Noise?
“At this point, they are still rattling their saber. They realize there’s a huge downside to suing their own customers, which again, at this point, is the only logical people they can sue,” Jenkins explained. Microsoft doesn’t want to start naming names because doing so could trigger the companies to file their own lawsuits, he noted.
In addition, most IP suits never make it to the point where a complaint is filed with a court. “They often send a cease-and-desist letter and then one side backs down — no evidence is collected, no charges are made, no nothing,” Jenkins explained.
“And Microsoft is probably hoping that’s what happens, where they never get to the point where they have to identify these things. They want to threaten whoever … into taking a license without having to identify very much,” he said.
Afraid to Identify the Patents?
If so many patents have been infringed upon, why isn’t Microsoft offering detailed evidence?
“They are probably not identifying the patents and what infringes on what because as soon as they do that, there’s all those open source people — this is their lives,” Jenkins said. “They sit at home at night, and they are going to dig into whatever is alleged to have infringed, and they’ll start trying to invalidate all of these patents.”
Dedicated open source aficionados may also be why Microsoft hasn’t filed a big lawsuit. An army of open source soldiers would very likely create a confusing storm of evidence that could potentially invalidate a patent, and once it’s invalidated, it’s of no value to Microsoft whatsoever.
Plus, if Microsoft suffers a high-profile loss, it would be devastating — future cease-and-desist letters issued by the company would carry significantly less sting.
A recent U.S. Supreme Court decision involving Telefex and KSR International has raised the patent bar, particularly in instances when combines two items to create a third. The decision made it more difficult to prove infringement when a party combines previous patents in so-called obvious ways.
Software developers, of course, have a tendency to put components together in obvious ways to solve business problems. When there are millions of developers simultaneously working on similar business problems, who can say what’s truly innovative?
“I remain convinced that the software patent system is fundamentally broken,” O’Grady said.
Broken or not, “After the KSR decision, software patents are especially vulnerable now,” Jenkins noted.
O’Grady doesn’t believe that Microsoft will sue its own customers, despite the fact that Microsoft CEO Steve Ballmer left that option open. “I don’t believe, at this point, that users should be concerned,” he said.
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