An article published Sunday reveals that Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez told Roger Parloff of Fortune Magazine that Free and Open Source Software infringes on no fewer than 235 Microsoft patents.
For some time now Microsoft has been claiming infringement of its patents by Open Source software. Gutierrez even claims such infringement is willful:
"This is not a case of some accidental, unknowing infringement," Gutierrez asserts. "There is an overwhelming number of patents being infringed."
Setting aside questions of Gutierrez’ command of grammar, I take offense at the notion that anyone in the Open Source world is willfully violating a Microsoft patent, particularly since Microsoft refuses to disclose any potential violations:
"Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them."
Gutierrez and Microsoft aren’t interested in intellectual property rights. They’re not interested in allowing the Open Source world to defend itself. They’re not interested in a fair fight. Like a bully, they refuse to face the Open Source world in a fair fight, instead hinting at willful infringement and making backhanded threats. Why? Like any bully they fear that when faced with a fair fight in the light of day they will be revealed for the bully they are. Like any bully they fear that which they threaten.
I work with many companies that have partnerships with Microsoft. For many years I’ve tried to give Microsoft the benefit of the doubt and watched them slowly move from anti-Open Source to an Open Source supporter, or at least a company that recognizes the importance of Open Source ISVs to the future of the Windows platform. But this bullying has to stop now.
If Microsoft believes that Free and Open Source Software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits. If not, then stop trying to bully customers into paying royalties to use Open Source. It’s time for Microsoft to put up or shut up.
It appears Microsoft is using the SCO playbook: claim infringement but withhold the evidence.
But then, wasn't Microsoft funding SCO? Now that the legal attack on Linux by SCO-as-proxy seems to be failing, Microsoft is switches tactics to a direct, albeit still nebulous, attack.
Posted by: ralphg | May 14, 2007 at 11:37 AM
Larry has the right idea here: Let's get these allegations out in the open once and for all so they can be debunked. That will allow developers to turn their attention back to more important tasks -- like developing better applications.
Isn't there some legal recourse that can taken against MS for this? Is there anyone out there familiar enough with the law to know whether it's a violation of civil tort to make such allegations without providing details?
It's time for RedHat, IBM, Oracle, et. al to come together and lay this matter to rest.
Posted by: David-Paul Niner | May 14, 2007 at 05:48 PM
Actually, Larry, a number, overwhelming or not, "is" rather than "are" if you want to get into copy editor nitpicking. That phrasing sounds stupid, though, so smart writers don't use that construction in the first place. :)
But your main point about Microsoft is correct, and that's what counts!
Posted by: Robin 'Roblimo' Miller | May 14, 2007 at 05:51 PM
Isn't it about time Congress worked on making such claims illegal, even punishable by money and time in jail?
It just bad for commerce as a whole to have a few companies make claims that are unprovable.
Perhaps if the courts considered this type of behavior 'advertising' they could be fined or jailed by the FTC.
Posted by: Steven Howe | May 14, 2007 at 06:50 PM
ok but what about the companies using OSS who have under the pressure already paid up to M$? if it proves there's been no patent infringement, would M$ have to pay the money back?
I mean this has been going on now for a long time, and i've read several stories where companies have paid, but for what, i don't get it, M$ just says you infringe, and they pay without even asking what?
Posted by: user | May 14, 2007 at 06:54 PM
Eventually, they will either have to engage in real patent litigation and expose their claims to scrutiny or the market will discount the claims and they will lose any value. The failure to disclose discounted the value and impact of the claims at the outset. The market is no longer ignorant enough to take wild arm waving as significant. SCO (with Microsoft funding) did a lot to educate them.
Having worked with Xybernaut, a company convinced at the very top of the Executive Team that it had incredibly valuable patents, I have seen the arc. Xybernaut eventually, in bankrupcy, tried to auction off the patents and got bids that were, compared to the valuations they believed in, a pittance. It was quite a revelation and one that will be repeated frequently in this software patent world.
We all look forward to a day when this is all on the table and we can understand the situation on the facts. Until then, this is the kind of empty rhetoric powerless bullies use in moments of fear.
Posted by: Marty Heyman | May 14, 2007 at 07:28 PM
"Microsoft, put up or shut up". Precisely!
Microsoft is following in the footsteps of their mutant offspring The SCO Group. Unfortunately for Microsoft, those footsteps wound up in the mouth thereof. It is not a pretty sight. :)
Posted by: Wesley Parish | May 15, 2007 at 01:17 AM
Microsoft have elevated the magic list of OSS-violated patents to the status of "Trade Secret"!
Revealing these patents has the likely outcome of greatly reducing their value, having them worked-around, or even extinguished. Bye-bye extortion racket...
MS - Put up or shut up!!!
Posted by: John Chrisoulakis | May 15, 2007 at 04:58 AM
"I have here in my hand a list of 205—a list of names that were made known to the Secretary of State as being members of the Communist Party" - Sen. Joseph McCarthy
Posted by: Balph | May 15, 2007 at 06:23 AM
Microsoft's goal is not to protect patents, or protect intellectual properties. Microsoft's goal is to slow corporate adoption of Linux, and protect their cash-cow, windows.
Their tried and true methodology has been, aquire or steal technology, sewing FUD (fear, uncertainty, and doubt), and enbrace and smother. This is no different.
Microsoft us sewing FUD regarding patent litigation to make linux unattractive. Its 'open source' initiatives are attempts to embrace and smother competing technologies. The deal with novel is about 'legitimizing' the FUD claims. ("Obviously this is legitimate, see, this other company paid...") And the combination will lower stock prices of, say, Oracle and RedHat, and allow microsoft to aquire them for a song.
Posted by: Jeff Knodel | May 15, 2007 at 08:24 AM
I have a theory that there's quite a bit that can be done, even in the absence of further details by MS. Their patents are publically searchable; with a bit of effort, the one's they're likely referring to can be identified rather reliably.
To make it easier, I've set up a little website for this purpose:
Posted by: Matt C | May 15, 2007 at 08:30 AM
"There is an overwhelming number of patents being infringed."
Well, that's what you get when you file an even more overwhelming number of vague, obvious, and overly general patents, not to mention plenty of those with prior art.
Posted by: Michael | May 15, 2007 at 10:21 AM
I think the only mileage they can even remotely hope to get out of this is a short term PR FUD-point.
I am quite sure recent SCOTUS decisions like KSR Intl. v. Teleflex and the like will not work in favor of MS either.
Were it to actually hit the courts, it could entirely (I would say very much likely end up very disappointing for MS, much as what came of Honeywell v. Sperry-Rand.
Posted by: Joseph Arruda | May 16, 2007 at 12:58 AM
I would like to know exactly what part of the Linux gui Microsoft thinks violated their patent. As far as I can tell gnome looks nothing like windows in its design. In fact the theme engine already existed before Microsoft put there's in. What are they suggesting the icons are a violation. I'd day thats a bit of a stretch if you ask me. Whats left if anything?
Posted by: Ragingguppy | May 21, 2007 at 01:25 AM
Lets not forget where MS got the idea for icons in the first place... Anyone remember the old Xerox display on its copiers? Bill Gates does!! Look, a tiny picture and if I push it the copier starts!! Cool!! MS windows got started by patent infringments.
Posted by: DaveLChgo | June 02, 2007 at 06:31 AM
Everyone copies off of someone to some extent...
Posted by: Jack | March 21, 2008 at 10:41 AM