Microsoft Acting Like a Patent Troll?

Chris Pepper (apparently) - 11:10am May 20, 2007 PST
via email

Adam quoth <http://db.tidbits.com/article/8993>:

>In an article in Fortune, several high-level Microsoft executives
>talked about the company's plans to take on the open source world -
>notably Linux - on patent infringement grounds. Needless to say,
>attempting to go after open source developers themselves is like
>boxing with a cloud. And while Microsoft could theoretically try to
>hit up Linux distributors like Red Hat and IBM for licensing fees,
>the GNU Public License (GPL) expressly forbids them from agreeing to
>patent licenses on GPL-licensed code, saying "We wish to avoid the
>danger that redistributors of a free program will individually
>obtain patent licenses, in effect making the program proprietary. To
>prevent this, we have made it clear that any patent must be licensed
>for everyone's free use or not licensed at all." Microsoft's third
>option would be to convince large corporate Linux users to pay
>licensing fees, a strategy that could backfire, given that many of
>those companies are also big Microsoft customers and could suffer
>from the anger of the open source community.

        And they don't want to end up paying MS for Linux, which is
often cheaper because MS isn't pricing it. A tax to MS can only hurt
pricing for Linux users...

>Instead, Microsoft and Linux redistributor Novell came up with a
>clever workaround by which Microsoft bought "coupons" for Novell
>Linux that it could resell to customers, who would then redeem them
>with Novell for Linux server subscriptions. This approach avoided
>the GPL's requirements that Linux redistributors like Novell cease
>distribution if conditions of a lawsuit or patent license caused a
>conflict with the GPL. Some large Linux redistributors endorsed the
>Microsoft/Novell agreement, but the open source community reacted
>hotly. Work was begun on a new version of the GPL to plug the
>loophole that Microsoft had exploited, and potentially to make
>Microsoft, as a distributor of Novell Linux via the coupons, subject
>to the GPL.

        GPLv3 was underway long before Novell/MS.

>What's most telling in this imbroglio is just how broken the U.S.
>patent system has become. The philosophy behind patents is entirely
>reasonable - as the U.S. Constitution says, it is "to promote the
>Progress of Science and useful Arts, by securing for limited Times
>to Authors and Inventors the exclusive Right to their respective
>Writings and Discoveries." But in the software world, a vast number
>of programmers have learned in roughly similar ways and have had to
>solve roughly similar problems over the years, meaning that any
>given solution to a problem has probably been arrived at
>independently by many people who may have thought the work
>potentially clever, but not so unique that it deserved to be
>patented. The problem is that once a patent has been granted, it
>could cost millions of dollars in legal fees to invalidate, leading
>to a situation where it's cheaper for infringing companies to
>license even clearly spurious patents than it is to fight in court.
>I recently explained all this to a Cornell sophomore during a
>noontime run, causing her to exclaim, "But that's just legalized
>extortion!" Well, yes, and that's particularly concerning in cases
>where the existence of a patent is being used as a legal weapon
>rather than a tool for innovation.

        True, although it doesn't require that victims decide not to
patent -- second and later players are perfectly free to try to
patent the same idea; sometimes they are rejected (PTO gets paid),
and sometimes they weasel past the PTO to get invalid patents (PTO
still gets paid).

>makes me wonder if anyone has created a fantasy patent trading game,
>along the lines of fantasy sports. Although I couldn't find evidence
>of such a thing, I did find a number of patents covering fantasy
>sports.)
>
>Another question that comes up is why Microsoft is exploring how to
>utilize its massive patent portfolio against open source now. An
>article in Macworld, from Elizabeth Montalbano of the IDG News
>Service, offers a number of suggestions:

        More possibilities:

        * As Microsoft watches SCO preparing to go down in flames,
they feel obliged to replace that "looming threat" with a direct
campaign.

        * Groklaw thinks this FUD campaign is an annual recurrence
(find "afraid" & "annual" in
<http://www.groklaw.net/article.php?story=20070517083516872>).

>Perhaps most telling is that Microsoft has merely asserted that open
>source software infringes 235 of Microsoft's patents. According to
>Microsoft, the Linux kernel violates 42 patents, Linux's user
>interface infringes on 65 patents, OpenOffice violates 45 patents,
>open source email applications rely on work covered by 15 more
>Microsoft patents, and various other open source applications
>infringe on a final 68 patents. But Microsoft has not given any
>further details, such as the exact patent numbers and the features
>or programs that infringe. Were Microsoft to provide those details
>or to actually file a patent infringement lawsuit based on them,
>things would get interesting. Without that information, there's
>nothing but FUD here.

        Also there are two independent GUIs, so are they talking
about GNOME or KDE (either of which most people could happily dump in
favor of the other), or themes, or something else? X11 itself (which
predates Windows)?? Apparently the numbers come from a 3-year-old
pro-Linux study, so their interpretation is at odds with the author's
and already suspect.

                                                Chris
--
Chris Pepper: <http://www.reppep.com/~pepper/>
                              <http://www.extrapepperoni.com/>
The Rockefeller University: <http://www.rockefeller.edu/>

Mark as Read

Jochen Wolters (apparently) - May 21, 2007 5:18 am (#1 Total: 6)

via email

Posts: 136

Re: Microsoft Acting Like a Patent Troll?

>> But Microsoft has not given any further details, such as the exact
>> patent numbers and the features or programs that infringe. Were
>> Microsoft to provide those details or to actually file a patent
>> infringement lawsuit based on them, things would get interesting.
>> Without that information, there's nothing but FUD here.

In essence, what Microsoft is saying is "We _may_ have something here
that could get you into serious problems, but we're kind enough to
offer you a licensing agreement, so we don't have to meet in court
over this. You know, we have many more lawyers and a much higher
legal budget than you, anyway, so why don't you pay up now."

Makes you wonder if someone at Microsoft has read Kafka's "The Trial"
recently...

<http://en.wikipedia.org/wiki/The_Trial>

Regards,
Jochen.

--
Jochen Wolters
jochen

polytropia.com | http://polytropia.com | jochenwolters (Skype)

Alexander Hoffman (apparently) - May 21, 2007 2:41 pm (#2 Total: 6)

via email

Posts: 174

Re: Microsoft Acting Like a Patent Troll?

At 5:18 AM -0700 5/21/07, Jochen Wolters wrote:
>Makes you wonder if someone at Microsoft has read Kafka's "The Trial"
>recently...
>
><http://en.wikipedia.org/wiki/The_Trial>

I object! :-)

As this is a reference to a novel, the link should be to the novel
(not to some cheater's guide to the novel).

<http://www.gutenberg.org/dirs/etext05/ktria10r.zip>

--
=Alex Hoffman
Leadership Policy & Politics
Teachers College, Columbia University

Conrad Hirano (apparently) - May 22, 2007 12:44 pm (#3 Total: 6)

via email

Posts: 67

On May 21, 2007, at 5:18 AM, Jochen Wolters wrote:

> In essence, what Microsoft is saying is "We _may_ have something here
> that could get you into serious problems, but we're kind enough to
> offer you a licensing agreement, so we don't have to meet in court
> over this. You know, we have many more lawyers and a much higher
> legal budget than you, anyway, so why don't you pay up now."

This behavior is apparently not peculiar to Microsoft; it is how
companies regularly conduct business. Last year, a friend who helps
write patent applications for tech companies explained to me how it
works. Company A will go to Company B, a competitor, and say, "We
have X number of patents, so pay up." Company A doesn't necessarily
know that Company B is indeed infringing on any of its patents, but
the more patents Company A has, the more likely Company B has
infringed. It's generally cheaper to pay the licensing fee than to
get into a court battle, so Company B pays up.

To defend itself, Company B, of course, will have amassed its own
portfolio of patents, so when Company A comes calling, Company B can
threaten a countersuit. Obviously, the company holding more patents
has the advantage. It's not so important what the patents actually
are, but rather the sheer number of patents a company holds.
Consequently, the companies spend time getting patents for even the
most trivial ideas.

Lewis Butler (apparently) - May 23, 2007 6:56 am (#4 Total: 6)

via email

Posts: 1011

Re: Microsoft Acting Like a Patent Troll?

On 22-May-2007, at 13:44, Conrad Hirano wrote:
> It's not so important what the patents actually are, but rather the
> sheer number of patents a company holds. Consequently, the
> companies spend time getting patents for even the most trivial ideas.

Which gets back tot he real core issue. It's not the companies that
are doing this that are the problem. It's not even the mud sucking
bottom dwellers like SCO that are the problem.

The problem is the sheer unadulterated stupidity and incompetence of
the US Patent Office.

One of my favorite examples is <<http://tinyurl.com/rhjal>> in which
the US patent office, in 2000, awarded a patent for "A method of
swing on a swing is disclosed, in which a user positioned on a
standard swing suspended by two chains from a substantially
horizontal tree branch induces side to side motion by pulling
alternately on one chain and then the other."

Now, at my elementary school in the 1970's, this was a common
practice as we would roll the middle of three swings up over the bar
and then use the two remaining swings to have Swing Wars in which,
using the described method, we would careen ourselves into one
another until someone fell off. Yes, it was violent and occasionally
bloody, but then all good children's games are, aren't they?

30 years later some yahoo at the US Patent office thinks, "Hey, yeah,
no one's ever done that before." Or maybe our Swing Wars wouldn't
qualify due to the lack of a tree branch? It's inane, and it
demonstrates the sheer incompetence of the Office perfectly.

dano (apparently) - May 23, 2007 6:56 am (#5 Total: 6)

via email

Posts: 81

Re: Microsoft Acting Like a Patent Troll?

At 12:44 PM -0700 5/22/07, Conrad Hirano wrote:
>On May 21, 2007, at 5:18 AM, Jochen Wolters wrote:
>
>>In essence, what Microsoft is saying is "We _may_ have something here
>>that could get you into serious problems, but we're kind enough to
>>offer you a licensing agreement, so we don't have to meet in court
>>over this. You know, we have many more lawyers and a much higher
>>legal budget than you, anyway, so why don't you pay up now."
>
>This behavior is apparently not peculiar to Microsoft; it is how
>companies regularly conduct business. Last year, a friend who helps
>write patent applications for tech companies explained to me how it
>works. Company A will go to Company B, a competitor, and say, "We
>have X number of patents, so pay up." Company A doesn't necessarily
>know that Company B is indeed infringing on any of its patents, but
>the more patents Company A has, the more likely Company B has
>infringed. It's generally cheaper to pay the licensing fee than to
>get into a court battle, so Company B pays up.
>
>To defend itself, Company B, of course, will have amassed its own
>portfolio of patents, so when Company A comes calling, Company B can
>threaten a countersuit. Obviously, the company holding more patents
>has the advantage. It's not so important what the patents actually
>are, but rather the sheer number of patents a company holds.
>Consequently, the companies spend time getting patents for even the
>most trivial ideas.

The tactic described was perfected (if not invented) by IBM's
corporate lawyers. The chief of these decamped to Microsoft a couple
of years or so ago.

There are several major differences between the tactic described
above and this situation with Microsoft attacking linux.

The big (huge) difference here is that Linux is not a company, so
Microsoft goes after any company that uses linux, accusing them of
infringement. The user companies can have no way of knowing if there
is infringement because they a) don't know what patents Microsoft is
referring to and b) they most likely don't know the linux code base
sufficiently to know much about any possible infringements.

Linux has no corporate backing, so the company has nobody to go to
for better information. In this way Microsoft can cause uncertainty
about the validity of the code and the OS, and perhaps push the
victim companies back towards Windows.

This furthers Microsoft's FUD campaign against Linux, most especially
in that it creates the threat of being sued by Microsoft.

IBM was able to stand up to SCO when they, SCO (partially bankrolled
by Microsoft) went after IBM for almost exactly the same charges.

Let's see if anybody calls Microsoft's bluff and tells them to "show
me the code".

Jochen Wolters (apparently) - May 25, 2007 10:53 am (#6 Total: 6)

via email

Posts: 136

Re: Microsoft Acting Like a Patent Troll?

> Let's see if anybody calls Microsoft's bluff and tells them to
> "show me the code".

Here are "a few" people who are asking Microsoft to do just that:

<http://digitaltippingpoint.com/wiki/index.php?title=Sue_me_first%
2C_Microsoft>

Regards,

Jochen.

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