This story appeared on Network World at

http://www.networkworld.com/columnists/2007/052107bradner.html

Microsoft: Invisible patents as a uniform

By Scott Bradner, Network World, 05/21/07

Fortune magazine thought the story was important enough to put above the magazine's name on the front cover of its May 28 issue: "Microsoft takes on the free world." The story makes it clear that Microsoft thinks it's again time to trot out its Fear, Uncertainty and Doubt (FUD) campaign against Linux. This attempt rings as hollow as previous ones.

Every now and then Microsoft starts frothing about Linux stealing its intellectual property rights. (See “Quality of threats rather than quality of software.” Law professor Eben Moglen has named this periodic frothing "Microsoft's 'be very afraid tour.'"

Fortune interviewed Microsoft general counsel Brad Smith and licensing maven Horacio Gutierrez. It quoted Gutierrez as accusing the Linux community of knowingly stealing Microsoft patents:

"This is not the case of accidental unknowing infringement. There is [sic] an overwhelming number of patents being infringed." Microsoft thinks 235 patents are involved, but refuses to list them so we have to take its word that the patents exist and are infringed.

I'm a bit confused by this dual view. On one hand, the Linux community is knowingly ripping off Microsoft patents and thus must know what it is stealing. On the other hand, Microsoft will not say what it claims the Linux community already knows. It's a puzzle at best.

Another company has said the Linux community stole its intellectual property rights. SCO claimed that there were millions of lines of its code in Linux, and when push came to shove, the company could only point to 326, most of which seem to be definitions in header files. I have no reason to think that Microsoft can count any better than SCO. Microsoft could easily prove me wrong by providing a list of the patents and claims but it's far better for the company’s FUD campaign not to do so. It is very likely that tons of prior art would be found after any such a listing, particularly considering the widened definition of prior art provided by the Supreme Court. (See “How do you spell patent relief?”)

By not saying what patents it thinks Linux infringes, Microsoft makes it clear it is not interested in stopping Linux from using Microsoft intellectual property. I expect it would take the Linux community a few months at most, and likely only a few days, to work around the patents if that was what Microsoft wanted. It is clear that Microsoft would like to kill open source software, which it sees as a threat to its bread and butter. In that desire, Microsoft is emulating SCO. Maybe Microsoft has come to the conclusion that if it wants some dirty deed done it has to do the deed itself rather than trusting what has turned out to be an unreliable agent in SCO.

In the Fortune story, Microsoft CEO Steve Ballmer specifically did not rule out emulating one of SCO's dumber moves of suing Linux users directly.

Some Linux users may be protected because, as part of its FUD campaign, Microsoft entered into a patent swap with Novell. According to Microsoft, Novell agrees that Microsoft has valid patent claims against Linux but the deal will keep Microsoft from suing any Novell Linux customers. Novell does not agree with Microsoft's characterization, claiming that it does not agree that Microsoft has patents that Linux infringes. It may not matter whose characterization is more accurate because a feature of the Microsoft/Novell deal may render all of Microsoft's threats moot.

My first thought when I saw the Fortune story was that Vista must be tanking and Microsoft decided it needed an alternative way to succeed. However, Bill Gates has announced that Vista is a big success, so I have no idea why Microsoft seems to want to outdo SCO in the sleaze department. But that is the road Microsoft is continuing to parade down -- wearing invisible patents as uniforms.

Disclaimer: Students wear all sorts of things for commencement in a few weeks but I haven't noticed invisible patents as an option (then again, they would be hard to see). So the above discussion is mine, not the university's.