The claim was made in an interview with Microsoft’s general counsel, Brad Smith, and vice president of intellectual property and licensing, Horacio Gutierrez, by Fortune magazine, but there are no indications that the company intends to file legal claims against open source users or developers.
Instead, the company would rather users concerned about patent infringement adopt the patent-approved software offered by its Linux partner, Novell, it would appear. The real question is not whether there exist substantial patent infringement issues, but what to do about them, said Gutierrez in a statement. Microsoft and Novell already developed a solution that meets the needs of customers, furthers interoperability, and advances the interests of the industry as a whole. Any customer that is concerned about Linux IP issues needs only to obtain their open source subscriptions from Novell.
According to Fortune, Gutierrez said that the Linux kernel infringes 42 Microsoft patents, while Linux graphical user interfaces infringe a further 65, OpenOffice.org 45, email programs 15, and assorted open source software, another 68.
Microsoft executives had previously told Computer Business Review that the company had not carried out a detailed patent assessment before reaching its patent covenant agreement with Novell.
We did not do a drains-up inventory, said Microsoft’s UK server director, Bruce Lynn in February, adding that the deal was almost like an insurance policy. There could be stuff that Microsoft is inadvertently using in Linux and Linux is inadvertently using in Windows.
The latest statement suggests that Microsoft has taken its patent claim assessment to a new level, therefore, but it appears the company will not be responding to requests to detail any infringements.
Fortune reported that Gutierrez refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.
One thing the company is doing, however, is using the words of the Free Software Foundation founder, Richard Stallman, against those that would deny free and open source software infringes its patents.
Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies, Gutierrez said.
That claim relates to a speech Stallman made in November 2006 in which he said: Two years ago, a thorough study found that the kernel Linux infringed 283 different software patents, and that’s just in the US. Of course, by now the number is probably different and might be higher.
This statement was itself in reference to a study published in 2004 by an IP insurance firm, Open Source Risk Management, which found 283 issued but not yet court-validated software patents that, if upheld as valid by the courts, could potentially be used to support patent claims against Linux.
Our View
A key phrase in OSRM’s 2004 announcement was if upheld as valid by the courts. Combine that with Microsoft’s reluctance to detail the patents involved and you have an open invite for Linux and open source developers to accuse Microsoft of generating fear, uncertainty, and doubt.
Until Microsoft states which patents it believes are being infringed it will be impossible to know whether the patent threat against open source software should be taken seriously. Given the uncertainty such a situation presents, it does not appear to be in Microsoft’s interests to clarify the situation.
The company’s reluctance to detail its claims is reminiscent of the position taken by SCO Group in its copyright infringement claims against Linux. SCO’s reluctance to detail its evidence eventually led to it being heavily criticized by Magistrate Judge Brooke Wells in June 2006.
Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole, she wrote. It would be absurd for an officer to tell the accused that ‘you know what you stole I’m not telling’. Or to simply hand the accused individual a catalog of Neiman Marcus’ entire inventory and say ‘it’s in there somewhere, you figure it out’.
While Wells was referring to SCO’s failure to detail its evidence that IBM breached a contract by transferring its own Unix code to Linux, it was appropriate given the company’s already abandoned claims that IBM misappropriated its trade secrets by transferring SCO’s Unix code to Linux.
Those claims fell by the wayside quickly, but not before they had encouraged Linux distributor Red Hat to invite the SCO to ‘put up or shut up’ via a lawsuit requesting a declaratory judgment that its Linux business did not infringe SCO’s copyright.
That case has been stayed pending the conclusion of SCO’s contract case against IBM and copyright case against Novell, but could indicate the future direction of the Microsoft/open source patent claims.
From IBM to Oracle and Red Hat to Hewlett-Packard, there are a lot of big companies making a lot of money from open source that will not take kindly to Microsoft’s suggestion that they have willfully infringed its patents, particularly if the company is not prepared to back up its suggestions with specific legal claims.
The current patent situation is often compared to the nuclear deterrent, where the concept of mutually assured destruction is supposed to maintain a patent cold war in the software industry.
While Microsoft can claim to have been mainly defensive in its actions around the use of patents, the words it is currently using are pushing the industry closer to the equivalent of the Cuban missile crisis.
