Meeting Microsoft's Patent Threat


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



Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

they are hating this

Mac Millan's picture

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.

re:patent business

Wayne Bienek, Web Designer's picture

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.

There is also the distinct

Ubuntu-Zenwalk user's picture

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.

open source world

shine india's picture

welcome to the opensource world of Information technology..

What if it really happened?

Patrick G Horneker's picture

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.

The Beast

Anonymous's picture

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.

There is a current prescedent for all of this.

Anonymous's picture

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:

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.

Come out of the closet

Nicholas Petreley's picture

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.)

1984 - The Beast Relaoded

HarryTuttle's picture

See for yourself:

We're all in IT together.

We owe m$ a thank you

GnuGuy's picture

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

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.

I could not agree more.

Patrick G Horneker's picture

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.

I think all the press and

Unregistered Eric's picture

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.

I got my employer to ditch SuSE

Anonymous's picture

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

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.)

They are scared to dead with

Anonymous's picture

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.

All about bonds!

jeffreyfrog's picture

Bonds are generally viewed as safer investments than stocks, but this perception is only partially correct. Bonds do suffer from less day-to-day volatility than stocks, and bonds' interest payments are higher than dividend payments that the same company would generally choose to pay to its stockholders. Bonds are liquid — it is fairly easy to sell one's bond investments, though not nearly as easy as it is to sell stocks — and the certainty of a fixed interest payment twice per year is attractive. Bondholders also enjoy a measure of legal protection: under the law of most countries, if a company goes bankrupt, its bondholders will often receive some money back, whereas the company's stock often ends up valueless. However, bonds can be risky:

Fixed rate bonds are subject to interest rate risk, meaning they will decrease in value when the generally prevailing interest rate rises.

Bond prices can become volatile if one of the credit rating agencies like Standard & Poor's or Moody's upgrades or downgrades the credit rating of the issuer. A downgrade can cause the market price of the bond to falls.
custom tote bags

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

Anonymous's picture

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, "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.

Meeting Microsoft's Patent Threat

martin5211's picture

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"?

Microsoft patent lawsuits

John633's picture

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.

ok but..

Turgut Kalfaoglu's picture

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.

Turning this around

Glyn Moody's picture

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.

Patently Ridiculous

Bernard Peek's picture

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.

One resolution

Glyn Moody's picture

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.

Hi, Glyn. Check your blog;

Matt C's picture

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.

Now checked

Glyn Moody's picture