MS Open-Source Patent Claims: Here We Go Again

Opinion: While Microsoft's latest claims may sound terrible to the layman, any attorney worth his or her salt will know that these are old and basically bogus statements. So, why is Microsoft trotting them back out again?

Microsoft CEO Steve Ballmer claims that "Linux violates more than 228 patents. Some day, for all countries that are entering WTO [World Trade Organization], somebody will come and look for money to pay for the patent rights for that intellectual property."

With that comment, Microsoft declared war against Linux and open source yesterday...Oh wait. My mistake, Ballmer made that attack in November 2004 .

What Microsoft did yesterday, in an interview with Fortune, was to have Brad Smith, Microsofts general counsel, reiterate and elaborate those tired old claims. This time around, Microsoft claims that the Linux kernel violates 42 of its patents, while the Linux graphical user interfaces break another 65. In addition, the Open Office suite of programs infringes 45 more, an assortment of e-mail programs violate 15 others, and an assortment of free and open-source programs allegedly transgress 68 more patents.

In a statement obtained by eWEEK, Microsofts vice president of intellectual property and licensing, Horacio Gutierrez, claims that "Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies. The real question is not whether there exist substantial patent infringement issues, but what to do about them."

/zimages/6/28571.gifClick here to read more about Microsofts claims of patent infringement.

How are these programs violating the patents? Heck, which patents are being violated? We dont know. Microsoft isnt saying.

Gosh, vague threatening IP (intellectual property) claims without any facts. Where have we heard that before? Could it be from early days of the long discredited SCOs claims? The claims, which have fallen from grandiose heights to 326 unimportant lines of code?

If we look closer at Microsoft claims, we see that we dont need a court to dismiss them. Take a hard look, for example, at Stallmans comment. He was referring to that same 2004 study I talked about at the start. The same study, where the author, Dan Ravicher, an attorney and executive director of PUBPAT (the Public Patent Foundation, told me at the time, "Microsoft is up to its usual FUD [fear, uncertainty and doubt]."

Ravichers point: Under todays cockamamie patent law, "the number we found, to anyone familiar with this issue, is so average as to be boring; almost any piece of software potentially infringes at least that many patents." He continued, "The point of the study was actually to eliminate the FUD about Linuxs alleged legal problems by attaching a quantifiable measure versus the speculation."

So, while Microsofts latest claims may sound terrible to the layman, any attorney worth his or her salt will know that these are old and basically bogus statements. So, why is Microsoft trotting them back out again?

I believe it serves two purposes. One is to spread more FUD about Linux and open-source. For the first time, a major computer vendor, Dell, has committed to a consumer desktop Linux. More states, such as California, are considering making laws that require the use of ODF (Open Document Format). From Microsofts point of view, it was time to get people worried about open source again.

The other purpose is to try to get leverage against the upcoming GPLv3 (Gnu General Purpose License, version 3). The latest draft includes patent language that will make it much harder to make patent deals, such as Microsoft and Novells November 2006 partnership.

Why should Microsoft care? Because, Microsoft, by distributing SLES (SUSE Linux Enterprise Server) certificates to customers such as Dell as part of the Novell/Microsoft partnership, may have just placed any IP they might or might not have in Linux, under the GPL.

No, thats not just open-source fanboy talk. Prominent open-source lawyers, like Eben Moglen, the executive director of the Software Freedom Law Center, believe that by distributing the SLES certificates, Microsoft has become a Linux distributor, and therefore subject to the GPL.

For Microsoft, being subject to the GPL in any way, shape or form would be a nightmare scenario. If they can get some leverage in their fight to get away from the GPL tarbaby by getting people frightened of open source, they will.

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