Is Microsoft Violating Some Patents Covering Open Source?

Could Microsoft products be in violation of some of the patents that cover Linux and open-source technologies, as many in the community believe?

Microsoft is not admitting to any such thing, but it is also not ruling out the possibility that Windows may have infringed on patents held by Novell and others in the open-source community.

There has been so much controversy about the deal and its implications that Novell CEO Ron Hovsepian released an open letter to the community Nov. 20 in which he rejected the notion that its recent agreement with Microsoft acknowledges that Linux infringes on the Redmond, Wash.-based software makers intellectual property.

To read more about Novells open letter, click here.

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While David Kaefer, the director of business development for intellectual property and licensing at Microsoft, declined to say whether the company believes any of its products infringe any of the patents covering Linux and open-source technologies held by Novell or anyone else, he did acknowledge that the recent deal between the two respected the value of Novells patent portfolio.

"Weve been very clear from the outset, and the financial realities of the deal underscore this, that Novells patents have value. One need only go back to the late 90s with Novells leadership in the directory space to recognize the benefits of much of the research and development that they conducted at that time," he told eWEEK in an interview.

"For the same reasons that Novell will not say if there are any Microsoft patents they infringe, Microsoft is not going to come out and admit that it has a set of products that infringe Novells patents," he said.

Read more here about the controversial patent agreement between Microsoft and Novell.

No company would go forth and present a list of what third-party technologies its patents infringed, Kaefer said, adding though that there is some acknowledgement on the part of Microsoft of the reality that there are a lot of patents in existence, "and we would rather have certainty and transact that certainty for value than to sit on the sidelines and wait for problems to occur. We dont want t subject our customers to that," he said.

When asked to identify any Linux or other open source or code that Microsoft believed violated its patents, as well as to say where it was found and in which distribution it was included, Kaefer evaded the issue, saying that no company in the open-source or proprietary field went through every product and looked at every patent claim they might or might not assert. "I just dont think thats productive," he said.

While Microsoft had heard and understood this request, it was borne out of the notion that it would be better if all the players steered clear of one another and stayed in their own small tents rather than living jointly in a large tent, Kaefer said.

Click here to read more about why Microsoft executives believe the deal recognizes, unambiguously, that there is value to intellectual property within open-source products used by customers.

"As a person who licenses patents for a living and who manages one of the largest portfolios out there and who has done deals with other companies with large patent portfolios, there is only so far that view [of separateness] can go. No one has the resources to completely steer clear of one another: Microsoft could not bring an operating system to market if we did not have rights to some other peoples IP," he said.

"It doesnt make us good or bad; its just a statement of fact. So we just believe in this very normal process of sharing patents and we share them in a way that works for our development model and which works for the development models of the companies we work with," Kaefer said.

What was unfortunate around the deal with Novell was the assumption that because this is a new model, it would be disruptive, he said, adding that the goal is for it to not be disruptive; only time will tell if that ambition and hope pan out, he said.

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