Microsoft Taking Heat For Patent Stance 226
Yesterday Novell released a statement disavowing Steve Ballmer's claim that Linux infringes Microsoft's IP. Linux-watch.com reports that Microsoft quickly responded with a statement of its own that softened, but did not entirely back away from, Ballmer's claim (but the article offers no link to such a statement).
xtaski writes, "Everyone took notice when Ballmer spewed forth FUD about Microsoft and Linux IP. Now CIOs are asking just what did Ballmer think he was doing? They are not fooled — but rather, a little angry. ComputerWorld covers the news including one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft.'"
And an anonymous reader points us to the statement by the Open Invention Network — whose investors include IBM, Novell, Sony, Red Hat, Philips and NEC — on the Microsoft-Novell agreement. From the statement: "OIN continues to support the Linux community's ability to collaborate and innovate. Through the accumulation of patents that may be used to shield the Linux environment, including users of Linux software, OIN has obviated the need for offers of protection from others."
Re:Emotionalism (Score:3, Informative)
Who says it's emotional?
You can look at the "benefit" that is being reaped from this deal with Microsoft and say: "Do I really want my company to be assosciated with these guys? Can I trust them?"
Of course a decent CIO should know that you can't trust Microsoft at all. this should be obvious from all the charred, burned-out corpses of former Microsoft "partners" littering the IT landscape.
Novells patents are now void (Score:2, Informative)
Eben Moglen on the Novell-Microsoft deal and GPLv3 (Score:5, Informative)
Prof. Eben Moglen says that GPLv3 will prevent a user's loss of freedom [theregister.co.uk] in light of the details of the Novell-Microsoft deal. He also takes the open source movement's lack of focus on user's freedom to task by ignoring "the politics" of the situation, leaving it ripe for being moved closer to what proprietors want.
The missing link (Score:2, Informative)
Re:By the same token... (Score:5, Informative)
False. This is actually a little bit of M$ FUD which you have somehow bought into. If Microsoft was found to have infringing GPL code in Windows, one option would be to GPL all of Windows. The other, more likely option, would be to simply remove the offending code. The exact same think any open source project would do if it was found to have infringing code found in it.
The idea that companies need to be afraid of having their closed source application forced open because some GPL code slipped in is one of the FUD meme's the Microsoft throws around to try and limit open source adoption. The reality is that the only companies that get screwed by the GPL are the ones who insist on trying to distribute GPL binaries without source knowingly even after they've been asked not to.
Unclean Hands Is Not A Complete Defense (Score:1, Informative)
If Microsoft were to sue a Linux entity (a distro, a developer, a company, whatever), the doctrine of unclean hands (also known as "laches") might provide a successful defense--but it would only be a limited defense. Here's why:
The Federal Circuit decided in the famous Aukerman v. Chaides, 960 F.2d 1020 (Fed. Cir. 1992) (en banc), that a successful latches defense prevents damages for the period prior to when the law suit was filed. This means that, if for example, Microsoft waited 10 years to sue somebody for infringement after the date *on which they should have originally sued*, they couldn't get damages for those 10 years. IMPORTANT: Microsoft could, if it won, still prevent the defendant from using that patented invention after that. It just means that Microsoft wouldn't get any $$$ for those 10 years.
Another subtlety of the laches defense is that (I'm pretty sure about this, though I don't have any cases to cite), the plaintiff's original threats have to be fairly specific. So, for example, Microsoft has to send a nasty letter to a particular company, saying "You're infringing on our patent, number 7,899,999," to create a reasonable apprehension on the part of the defendant that an infringement suit is imminent.
If Steve Ballmer is just yelling, "Those Linux people! They're infringing!!!"--well, that's just got going to be specific enough to give a defendant a good laches defense.
See http://www.law.duke.edu/journals/dltr/articles/20
(Also, btw, it is incorrect that a plaintiff always has a duty to mitigate damages. I can think of a couple examples of where that's not true. But that's enough law for one post.)
Re:Are they feeling pressure? (Score:3, Informative)
The simple fact of the matter is that Microsoft HAS used their portfolio to intimidate the little guy producing free products, there is no reason to believe that they will not flex their muscles to enforce their monopoly.
(insert a "f-bomb Microsoft" here)
Re:This is only logical (Score:3, Informative)
The USPTO has neither the time, nor the manpower to do a good job of "looking at them more skeptically".
God help them if they actually had to go back and do a review in order try and catch all the 'bad' patents that they've approved.
Re:anticompetitive, barriers to entry (Score:4, Informative)
That's the common view, and it's wrong
However, if your software uses some patented algorithm (yes, I know, that's a hideous turn of phrase) then odds are you'd never risk releasing the source, so you could probably infringe forever and nobody would ever know.
If the algorithm is important and difficult to work around, then the patent holder will know even if you ship just binaries, and they can and will compel you to produce source code. In addition, your behavior will likely be interpreted as willful infringement, exposing you to extra damages.
That is really the greatest threat to open source software from software patents: the fact that it is substantially easier to determine if an open source package is infringing. In a litigious environment, it's easy to say, "why take the risk?"
That's pure FUD (do you work for Microsoft?). Open source has been around for several decades, and I'm not aware of any serious consequences for end users from patent infringement by FOSS. First of all, for the very reasons you mention--people know they are being scrutinized--patent infringement by FOSS is rare, and when it does, people simply remove the offending code.
You're far more at risk with closed source software--infringement seems to be far more frequent, lawsuits happen often and with serious consequences, and whether you as the customer are directly liable for infringement or not, you will often still face substantial costs if your vendor is found guilty.
So far as DOJ scrutiny is concerned, does anyone know if the DOJ has ever charged a large corporation with an antitrust violation for using a patent portfolio to suppress competition, given that that is the intended function of patents?
There is ample precedent for the government interfering in how companies license patents. But what's at issue here is not the exclusionary nature of patents in general, it's the inequitable way in which it is being used: companies who cross-license the entire portfolio have no costs, while newcomers to the market may not be able to enter at all.
Re:why hasn't anyone just found out for themselves (Score:2, Informative)
The same query on the published application database [uspto.gov] returns 8093 hits [uspto.gov] from 2001 to today.
Searching AN/ibm OR AN/"international business machines" returns 45414 patents [uspto.gov] and 18454 published applications [uspto.gov].
Re:FUD (Score:2, Informative)
Basically, invoking the laches defense will prevent all infringing activity prior to the filing of the suit from being included in any damages, but will not prevent a possible assessing of damages after the file, not bar the judge from issuing an injunction to stop further infringement. The patent law [cornell.edu] also provides a time limit of six years prior to the filing date of the suit for assessing damages; this time period has been used by judges in the consideration of the laches question (see second link for the full discussion of how this works).