Meeting Microsoft's Patent Threat

May 14th, 2007 by Glyn Moody

Your rating: None

So, the shape of the Great Battle begins to emerge. As reported by Fortune magazine, Microsoft's general counsel, Brad Smith, reckons free software infringes on no less than 235 of the company's patents:

He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

Although Microsoft has not declared which of its patents free software supposedly infringes, you can bet a fair number will be on utterly trivial and obvious things – remember that a patent has been granted for the progress bar – that are used by practically every software program. Since they are so ubiquitous and trivial, the question then becomes why they were granted in the first place: patents by definition are supposed to be non-obvious as well as possessing novelty and utility. In other words, Microsoft's threat of using software patents to attack open source is part of a far larger problem: the granting of software patents at all.

What is remarkable is that initially there was near-universal agreement that software could not be patented, since it was on a par with mathematics or the laws of nature. But gradually, that view was weakened by a series of court decisions that started to blur the distinction between software and devices that used software. Even in Europe, where software patents “as such
__________________________


Special Magazine Offer -- Free Gift with Subscription
Receive a free digital copy of Linux Journal's System Administration Special Edition as well as instant online access to current and past issues. CLICK HERE for offer

Linux Journal: delivering readers the advice and inspiration they need to get the most out of their Linux systems since 1994.

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.
Mac Millan's picture

they are hating this

On September 10th, 2007 Mac Millan (not verified) says:

They are scared to dead with all things Linux. Like all Empires, they will have an end. Maybe this is the start of their self-destruction.... we hope.

Wayne Bienek, Web Designer's picture

re:patent business

On June 15th, 2007 Wayne Bienek, Web Designer (not verified) says:

Microsoft is semi-clever.. now Linspire has been added to the fray.. they got paid by microsoft to sign an agreement and enter into the same agreement as Novell, lending more credence to their patent disputes.

Ubuntu-Zenwalk user's picture

There is also the distinct

On June 19th, 2007 Ubuntu-Zenwalk user (not verified) says:

There is also the distinct possibility that thorugh these deals, Microsoft will tie up the high level portion of the organization and keep them from creating work arounds with the patents when Microsoft unleashes its brigade of patent lawyers. Then it is a matter of money and desperation to keep the courts to rule that Microsoft is not a distribution vendor by the wording of the GPL v3. Corporate crimes, which would lead to that kind of ruling, are the most violent and well planned of all forms of organized crime.

shine india's picture

open source world

On May 25th, 2007 shine india (not verified) says:

welcome to the opensource world of Information technology..

Patrick G Horneker's picture

What if it really happened?

On May 19th, 2007 Patrick G Horneker (not verified) says:

Suppose MS were to follow through.

First, how does a mere user of free software "violate" a patent?
It would be quite unprecedented, not to mention stupid!

Second, MS would have to sue more than half of the Fortune 500 companies as the Linux user base is quite extensive in the corporate world. This would convert Wall Street from a bull market to a bear market in a hurry, and would place our entire economy into a recession.

Third, how would MS know who the "users" and "developers" are?

Fourth, such an action would literally take decades to resolve, also given the size of the Linux and FOSS communities.

This action is an obvious sign of FOSS success, and it spans across every platform. FOSS is favored in Corporate America because of the reduced IT costs, not to mention the in-house customizations of the software source made possible.

...and what about the Linux users in a residential environment?

Sure, we have two commercial UNIX dialects we can turn to: Mac OS-X and Solaris.

Linux has proven itself to be viable for home use, too.

Then again, if every patent, trademark and copyright were enforced like this, our economy would come to a complete stop, because nobody would be making anything, without having to worry about what they are stepping on.

Besides, hasn't MS violated patents on some of its own products such as Internet Explorer and Windows Media Player?

There is an old saying about that: He who lives in glass houses should not throw stones.

It is quite obvious what is really going on here.

Anonymous's picture

The Beast

On May 15th, 2007 Anonymous (not verified) says:

Beware the Beast... Microsoft is pulling it's teeth towards the Open Source Saints because the Beast doesn't want anyone to be free at all. It feeds on human enslavement (technological) to enrich and grow Illuminati's power through corrupt banking and political systems. It's a Biblical prophecy (Revelation 12-...). So, my Saints, please be ready and stand fast. It's going to be hard, dirty, long and painful... But at the same time, be on the lookout and watch your back, since this Beast is clever enough and it might just be doing this to divert attentions from something else... so make sure your "armor" doesn't have any flaws... Yahweh (YHWH) be with you all who have faith in Him. Revelation 12:7.

Anonymous's picture

There is a current prescedent for all of this.

On May 16th, 2007 Anonymous (not verified) says:

I am an avid model railroader as well as an old timer in the IT field. If this thread is of interest, you may wish to follow:

http://jmri.sourceforge.net/k/updates.html

A firm called KAM was able to gain patents on what I believe to be obvious general computing principles by applying them to model railroading and changing a bit of terminology - priority queuing and reordering, multitasking, networking ... need I go on. In turn, they have decided to pursue litigation against OpenSource equivalents.

I'll leave it to you read on if you wish ... It may be a landmark for what is to come.

Nicholas Petreley's picture

Come out of the closet

On May 16th, 2007 Nicholas Petreley says:

I'm impressed by your courage to mention YHWH, and I happen to have my faith in our sovereign LORD, too. But I'd admire your courage more if you didn't say it as anonymous. ;)

(Don't take my criticism too seriously, I just couldn't resist.)

HarryTuttle's picture

1984 - The Beast Relaoded

On May 15th, 2007 HarryTuttle (not verified) says:

See for yourself:
http://www.bravegnuworld.org/

We're all in IT together.

GnuGuy's picture

We owe m$ a thank you

On May 14th, 2007 GnuGuy (not verified) says:

Just imagine all the free press we're getting from this. We have a huge monopoly scared. Outstanding! If I were a stock holder, I'd be very seriously considering selling my m$ shares while I can. Their value has been stuck in a range of 28 to 30 for over 4 years. Now, if they pursue this, they will be adding huge costs to their business ops. This will chew up a good portion of their war chest. Then, in order to replace all that cash, guess what? They'll have to increase their licensing fees to offset the cost of a long, drawn out litigation. And all that's going to do is drive more of their customers away.

Thank you, Steven. Thank you, Bill. You guys gave me something to smile about. Oh, and did I mention all the free press we're getting from this?

Glyn Moody's picture

Absolutely

On May 15th, 2007 Glyn Moody says:

Not only free press, but hugely positive press at that. Even I've been amazed at the outpouring of scorn directed at Microsoft for the way it's done this. Whatever its deeper intentions, the whole exercise looks like it's backfired badly.

Patrick G Horneker's picture

I could not agree more.

On May 19th, 2007 Patrick G Horneker (not verified) says:

This issue was heard on National Public Radio this past Thursday (5/17/07), so the attention here should give us some positive support.

Think about those of us who use Linux in the home for everyday tasks.

Unregistered Eric's picture

I think all the press and

On May 19th, 2007 Unregistered Eric (not verified) says:

I think all the press and support of linux recently is starting to knock on the doors of Microsoft and they are taking more of a look at linux as a threat than they have in the past. Why else would they be attacking linux, if they didn't believe linux was a threat, they most likely would leave it alone. This is just their pathetic way to throw their weight around as the top dog, trying the mark their territory.

Anonymous's picture

I got my employer to ditch SuSE

On May 15th, 2007 Anonymous (not verified) says:

Here's a case in point. A few months ago, my employer was looking longingly at SuSE, which I myself used to use. Turns out I have some influence with the CIO. I told him about the Microsoft-Novell patent deal and what an eventual legal risk it is to us if we go with SuSE. He agreed, and we went with RHEL.

Now along comes yesterday's threat from Microsoft. I showed it to said CIO, and he took it in the context of the MS-Novell patent deal. He told me, "good call, kiddo." We're continuing with Red Hat...and no, we are emphatically *NOT* a small customer. I must admit, a smile does creep across my face when I go to sleep while thinking of that. :-)

We still use some Microsoft Windows. But I'm working on that, too...slowly, but successfully. God, it's great to work for a boss that actually listens to you!

Anonymous's picture

Irony

On May 14th, 2007 Anonymous (not verified) says:

After years and years of FUD from Microsoft, they now claim that all this "inferior, broken" software that they've been railing against is stolen from them... What does that say about their own products, if one assumes they're right? (Not that I do, which is why I've used Linux since 1993.)

Anonymous's picture

They are scared to dead with

On May 14th, 2007 Anonymous (not verified) says:

They are scared to dead with all things Linux. Like all Empires, they will have an end. Maybe this is the start of their self-destruction.... we hope.

Anonymous's picture

Sure way to get Microsoft's attention and change their course

On May 14th, 2007 Anonymous (not verified) says:

We need to find a way to present the downside consequences of Ballmer's hard line (on Open Source / Linux) to all major analysts and Microsoft stock holders: in brief, Microsoft is being too aggressive, and so is putting their investment at substantial risk. Microsoft risks damaging its brand and losing goodwill.

As Etienne Wenger (guru of communities) has observed in another context (Iraq, see http://www.ewenger.com/personal/life_in_defense_of_goodwill.htm), "raw might is not a definite advantage. There are too many ways to undermine it, too many ways that it will reproduce that which it seeks to eradicate... the more blatant power you have, the more goodwill you need". Example: a British-based corporation lost that goodwill (thru their use of animals in testing pharmaceuticals) and a campaign began, aimed at influencing their major stockholders. While I am NOT advocating a similar campaign, there is a real risk that Microsoft will create a major backlash with unpredictable results. This could hurt everyone, them included.

martin5211's picture

Meeting Microsoft's Patent Threat

On May 14th, 2007 martin5211 (not verified) says:

Doesn't Microsoft violate any patent from Open Source? they don't take out any profit?

Why do they want to monopolize absolutely everything?

Until where does this arrive?

At last... are they "the untouchables"?

John633's picture

Microsoft patent lawsuits

On May 14th, 2007 John633 (not verified) says:

I wholeheartedly agree that software should not be patentable. Wholesale copying may reasonably be protected by copyrights but patents on methods and algorithms is silly. So are "look and feel" patents. If we were to do that in automotive design, we would have absurd suits patenting styling and innumerable other things. There is nothing wrong with "work alike" software, which corresponds to work alike principles in virutally every other realm such as automobiles.

A fundamental problem is with the legal system itself. Although initially it was thought that software should not be patentable, there has been a gradual encroachment of patentablity into software. Why? Because lawyers, and judges welcome anything that expands their interests. Expanding the scope of lawsuits is in their interest, either consciously or unconsciously. The realm and scope of lawsuits continues to expand in many realms. Sexual harasment was not even a concept 20 years ago. Now it is a major legal industry. Lawyers love it because it expands their opportunities for litigation and the resulting profits. Lawyers should not be allowed to hold legislative office. Why? Because they are officers of the judicial branch of government. Constitutionally, there is suppose be a separation of powers. With Lawyers serving in legislative bodies, they constantly expand their own influence and power by passing laws that expand the scope of judicial power. Patent law is one example. They welcome more patent litigation since it expands their power,influence, and profits.

Turgut Kalfaoglu's picture

ok but..

On May 15th, 2007 Turgut Kalfaoglu (not verified) says:

Microsoft's position is understandable: They are a large company that needs to stay afloat. Unless they can do something against the "free stuff" that's at par or better in quality, they are not going to be profitable for much longer.

At the expense of looking like the "bad guys", they are hoping to 1) intimidate the competition from investing into open source, 2) do some serious harm if they are to win any of these silly cases, 3) and earn some cash from settlements or from "damages" they receive.

What is more difficult is to predict the outcome of these cases. Typically, some experts will testify that yes, that progress bar looks like this one, and the judge will have to come to some decision.

Just the fact that such trivial patents were granted, makes the judge's position more difficult, even if he hated Microsoft's guts.
From what I have seen from the American judicial system, usually the richer party wins.

What I mean is that, let's not underestimate the big monopolistic corporations. They may not be good at what they produce, but they are good at eliminating competition.

Glyn Moody's picture

Turning this around

On May 15th, 2007 Glyn Moody says:

Equally, if Microsoft ever brought any of its alleged infringement cases to court, it would be such an obvious attempt to use a broken patent system to eliminate business competition that judges might decide that now is the time to draw a line in the sand over trivial patents.

Bernard Peek's picture

Patently Ridiculous

On May 16th, 2007 Bernard Peek (not verified) says:

Having worked in both industries I'm aware that the patent systems for both software and drugs are broken. Unfortunately they are broken in such a way that any fix that helps one situation is likely to make the other worse. Software needs a shorter period of exclusivity and drugs need it to be longer (but that's a debate for elsewhere.)

The less than inspiring competence of the patent offices in the US and Europe (I am in the UK) doesn't help.

My own solution would be to require anyone filing a patent to post a performance bond, which they forfeit if the patent is later overturned. Anyone who provides evidence should get a percentage. This is an application of the "many eyes make all bugs shallow" principle.

Glyn Moody's picture

One resolution

On May 16th, 2007 Glyn Moody says:

Is quite simple: extend patents in general, but disallow all software patents. However, I'm not convinced that the big pharmas really need longer patents; on the contrary, as the Against Monopoly link I referred to in the main post discusses.

Matt C's picture

Hi, Glyn. Check your blog;

On May 16th, 2007 Matt C (not verified) says:

Hi, Glyn. Check your blog; I've been dropping you lines in there too.

The first step in reversing our patent mess should not come from judges but *congress, viz.: a law that defines patent abuse. Or patent fraud. Call it whatever -- but make it a serious offense and the punishment *very painful, in keeping with the catastrophic damage that patent abuse does to the public domain.

Glyn Moody's picture

Now checked

On May 16th, 2007 Glyn Moody says:

Thanks.

Post new comment

Please note that comments may not appear immediately, so there is no need to repost your comment.
The content of this field is kept private and will not be shown publicly.
  • Allowed HTML tags: <a> <em> <strong> <cite> <code> <pre> <ul> <ol> <li> <dl> <dt> <dd> <i> <b>
  • Lines and paragraphs break automatically.

More information about formatting options

Newsletter

Each week Linux Journal editors will tell you what's hot in the world of Linux. You will receive late breaking news, technical tips and tricks, and links to in-depth stories featured on www.linuxjournal.com.
Sign up for our Email Newsletter

Tech Tip Videos

From the Magazine

December 2009, #188

If last month's Infrastrucuture issue was too "big" for you then try on this month's Embedded issue. Find out how to use Player for programming mobile robots, build a humidity controller for your root cellar, find out how to reduce the boot time of your embedded system, and if you're new to embedded systems find out the basics that go into one. You can also read about the Beagle Board, the Mesh Potato and a spate of other interestingly named items. And along with our regular columns don't miss our new monthly column: Economy Size Geek.







Read this issue