Microsoft Talks Patent Trash

Microsoft made news again this week when Steve Ballmer and Microsoft’s top lawyer were quoted in Fortune. The tone of the article is that Microsoft will go after open source software users for royalties, From the Fortune article:

Microsoft counters that it is a matter of principle. “We live in a world where we honor, and support the honoring of, intellectual property,” says Ballmer in an interview. FOSS patrons are going to have to “play by the same rules as the rest of the business,” he insists. “What’s fair is fair.”

the Fortune article went on

Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

They don’t list the patents but they do give the following breakdown:

But he does break down the total number allegedly violated – 235 – into categories. 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.

By not providing any details they don’t have to worry about a counter-argument, or if there is actual infringement they won’t have to worry about the software being re-written around the infringement. It’s similar to what SCO did when they tried to sell Linux licenses so purchases would be protected from the infringement on patents SCO owned. The patent lawsuit against IBM over Linux patents hasn’t gone so well. So Microsoft was a bit smarter and appears to be asking for money before ever having to prove anything. And even if they don’t get any money the FUD (Fear, Uncertainty, Doubt) over open source would only help them.

Microsoft does have experience with software patents, as they’ve been on the losing end of several patent claims.

But to make matters worse for Microsoft, the author of the study cited by Microsoft about the infringing patents says Microsoft got it wrong.

The study claimed that Linux has been found to potentially violate 283 software patents. The author of that report, however, doesn’t see things the way Ballmer does at all.

and quoting the study author

“Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does.”

The study talks about “potentially” infringing patents which is very different than proven infringements. The study authors say that the number of potentially infringing patents is so average for software “as to be boring.”

So the bottom line is this seems to be Microsoft FUD. It’s still my opinion that lawsuits are signs of a failing business. I don’t see Microsoft failing anytime soon but wish they stick to writing good software and stop marketing via fear.