Is Fighting Open Source With Patents A Smart Move By Microsoft?

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Fortune Magazine published an article in which they describe how Microsoft claims that free software, such as Linux, violates 235 of its patents.

Some key snippets (emphasis mine):

Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

In the meantime, with Microsoft seemingly barred from striking pacts with distributors, only one avenue appears open to it: paying more friendly visits to its Fortune 500 customers, seeking direct licenses.

If push comes to shove, would Microsoft sue its customers for royalties, the way the record industry has?

“That’s not a bridge we’ve crossed,” says CEO Ballmer, “and not a bridge I want to cross today on the phone with you.”

The article points out that Microsoft doesn’t make any specific patent claims. They simply break the number down into categories.

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.

I understand that Microsoft is a business and has a duty to its shareholders and the right to protect its patents. But the question I ask here is whether this is a good idea? Is this really a good strategy to meet its fiduciary duty? Will this keep its shareholders, customers, and developers happy?

At the moment, I don’t think this is a wise move. I’m not a patent expert so there is no point in me arguing on the validity of their patent claims, so I won’t. I will try to reserve judgment concerning the areas I am not well informed about. Instead, I want to focus on the negative perception of such a move for Microsoft and the potential effects of that.

On the face of it, given the recent pact between Novell and Microsoft, this seems like a transparent attempt to scare other Linux distributors into forming their own pacts with Microsoft. This perception of bullying certainly doesn’t help Microsoft’s image, which had been on the mend in the last few years.

Not only that, but by executing such a move, Microsoft will find it hard to avoid the charge of hypocrisy by its critics considering how Microsoft itself has been the victim of patent trolling in various lawsuits such as the EOLAS case and the more recent Vertical Computer Systems lawsuit over .NET.

Given the recent Supreme Court rulings around patent trolling, this announcement seems especially poorly timed. Microsoft appears to be trying to have it both ways, fighting against silly patents on the one hand while threatening enforcement of patents with the other.

Again, I do not know that Microsoft is engaging in hypocrisy or patent trolling. I am merely focused on the perception of their actions. I can’t claim that Microsoft is patent trolling because I don’t know whether these patent claims are legitimate. And that’s part of the problem. Nobody knows yet.

By not addressing specifics, Microsoft is not opening its patents to challenge. So while they might not be patent trolling in this case, they certainly are (whether intentionally or not) creating an environment of fear, uncertainty, and doubt for the ecosystems that have grown around these open source projects.

This at a time when Microsoft seemed to really be warming to Open Source. At the Mix07 conference, I really got the sense that developers and program managers at Microsoft are really starting to embrace the Open Source Software and how it fits into the Microsoft ecosystem.

This may be indicative of a disconnect within the Microsoft ranks. It seems that the new wave of Microsoft employees, especially many of their developers and Program managers, see Open Source as a way to enhance and generate value around the Microsoft .NET development platform. Meanwhile, it appears that the old wave of Microsoft executives and its legal department cannot look beyond the potential threat that OSS might be to Microsoft and smell opportunity.

This points to another potential negative effect of this strategy - potential developer discontent within and outside the company. Microsoft’s recent attempt to stifle Office 2007 ribbon look alikes pushed Mike Gunderloy from the ranks of being a relative proponent of Microsoft to deciding to completely leave the Microsoft universe. Could this announcement have a similar effect on other developers and hurt Microsoft’s ongoing competition with Google in retaining the best and the brightest?It remains to be seen.

As I said in a recent interview, I firmly believe that the .NET platform is a fantastic environment for developing open source software. I also believe that these myriad of open source projects built with .NET benefits Microsoft immensely. So this recent news about Microsoft’s Patent fight just leaves me scratching my head, not because I don’t think they have the right to defend their patents, but because I wonder if it’s really the smart thing to do at this time.

In any case, at the very least, I hope they don’t use the RIAA as a model of strategic brilliance and start suing their own customers. Now that, I can unilaterally claim, would be a bad move.

What are your thoughts on this? Am I off base and uninformed, or do I make a good case here?

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30 responses

  1. Avatar for Jeff Atwood
    Jeff Atwood May 13th, 2007

    Title should be "Software Patent Armageddon"

  2. Avatar for Ross Neilson
    Ross Neilson May 13th, 2007

    I agree that this isn't good PR by Microsoft at all. It's difficult to quantify, but is the amount of cash they might generate from enforcing patents worth the negative publicity this is likely to generate? I doubt it.
    When you consider the typical person that works on an open-source project, versus a giant global corporation with oodles of lawyers, it just seems ridiculous.
    Microsoft would be better off fostering good relations with the open-source community and allowing it to keep demonstrating what a fantastic development platform .NET is.

  3. Avatar for Mike Minutillo
    Mike Minutillo May 13th, 2007

    I think you are missing the point of doing this in the first place.
    Despite the fact that it will have an affect on the developers in the Microsoft Space, this move is not targeted at them at all. It is instead targeted at potential clients.
    The fear of having Microsoft actually successfully enforce these patent violation claims will drive potential clients to stay away from Open Source software.

  4. Avatar for Jay Flowers
    Jay Flowers May 13th, 2007

    You say that Microsoft's intent is to "drive potential clients to stay away from Open Source software". When I read the blog entry that is what I here Phil saying; Microsoft is trying to "drive potential clients to stay away from Open Source software". So even if we, Open Source developers, are not in the cross-hairs we are significant collateral damage.

  5. Avatar for Adam
    Adam May 13th, 2007

    Hey, Jeff, where's your post about this? :)
    I'd be interested to see your take on it.

  6. Avatar for Nate Kohari
    Nate Kohari May 13th, 2007

    It's certainly true that Microsoft should be allowed to defend their intellectual property. However, I agree 100% that a FUD campaign is the last thing that they need. I also agree that if they made any real effort at stifling the open-source movement, developers would leave the .NET stack in droves just on principle. I guess it comes down to the strategy of the company. What's more important -- selling Vista and Office, or having the next "killer app" written for your platform by an ISV or lone developer? Since the former is more quantifiable as to the bottom line than the latter, I'm not surprised to see the execs lean that way. Short-sighted, though, if you ask me.

  7. Avatar for IDynamic
    IDynamic May 13th, 2007

    Microsoft stooping to a new low

  8. Avatar for The Other Steve
    The Other Steve May 13th, 2007

    I'll just remind Microsoft of all the truly successful companies in this world who tried to defend their position by suing the competition for infringement.
    Now those were all about look and feel, like the office ribbon. But the point remains, that suing other companies does not work as well as putting your time and effort into building better products.

  9. Avatar for Ron
    Ron May 13th, 2007

    Just a few things,
    First off with the new Supreme Courts rulings about patents, this does not sound like a good idea on Microsofts part. Microsoft may have patents that are being infringed and they may not. They could be invalidated if push comes to shove. I do not feel that IBM and the others will allow this to happen. Is this why Microsoft does not list the infringing patents specifically, are they afraid that the patents are really invalid. Anyone can write that so and so infringes on my patents, but to actually come out and prove it is going to take lots of time and money. SCO is trying something like this only with code being copied into Linux and look where they are headed. All I can say is why is Microsoft afraid to show which patents are being infringed?
    Next is that Microsoft themselves are know to infringe on many patents and they seem to do so so often. So they get caught and have to spend a few million to clear it up, how much did they make on that theft in the first place? Microsoft has had their hands slapped many times for infringing on others patents.
    Why is Microsoft afraid? I think they either need to put up or shut up. Show us the code Microsoft.

  10. Avatar for The Other Steve
    The Other Steve May 13th, 2007

    Ron, I think your second point contradicts the first.
    Either it's ridiculous to patent obvious things, or it is not. You can't selectively enforce that doctrine.

  11. Avatar for Ron
    Ron May 13th, 2007

    I just read the comment on, PJ does it so much better than I. You can read it here:

  12. Avatar for Karthik
    Karthik May 13th, 2007

    Couldn't agree more about the disconnect within MS. This whole lawsuit thing seems to be coming from the "old school MS" camp led by Balmer.
    The "new school MS" camp which represented themselves largely at Mix07 doesn't stand for this kind of garbage.
    Honestly I think the MS shareholders should call for Balmer to step down after this. When he leaves then maybe he can take the rest of the old school camp with him.

  13. Avatar for Jason
    Jason May 13th, 2007

    Just for fun, let's assume that a handful of the patents are valid. What’s special about the Linux kernel and other free software that should make it exempt from intellectual property protections? What if the allegedly-infringing software were from Sun or Apple?

  14. Avatar for Darren Kopp
    Darren Kopp May 13th, 2007

    Well... If MS had some code that infringed on an open source license, you had better believe that the company that made that code would be taking microsoft to court, so i don't see why ms shouldn't be able to.
    when it all comes down to it, patents should be upheld (to an extent... our patent system is a bit wack!). If i were ms though, i wouldn't be going for money, i would just be approaching the companies and saying "here is what is infringing. we would like to resolve this in a way that will keep your software free. you can attribute these parts to us, or here are some alternatives that you could do." and work with the companies.
    That will give a better image and most likely strengthen interoperability between ms and oss vendors (like how things went down with novell).
    All in all, ms never has been good with the "public image" aspect of the company.

  15. Avatar for Brandon
    Brandon May 13th, 2007

    Stupid question, but where is a place to find the patents that are being used by other companies? Is it the look and feel or is it some other proprietary piece like a search algorithm, not sure if you can patent this.

  16. Avatar for Luke
    Luke May 14th, 2007

    MS will not sue customers because it would mean revealing which patents they think are infringed. Once they would do that it would only be a matter of time before all offending code is removed from the newest releases of Linux, and patches are developed to change it in current distributions.
    If we know what we are infringing, we can rebuild it - it might be difficult, and time consuming, but it can be done. And it will be done if that's what is needed. We can always change the behavior and functionality in a way that is out of the scope of the given patent.
    But Microsoft doesn't want the Open Source community to purge the infringements from their products. They want to keep them in their little war chest which they can show to potential customers who consider switching to Linux.
    This is what happens:
    You tell MS that you won't be renewing their windows licenes because your office is switching to linux. They respond by threatening to sue you for 200+ patent infringements. Management gets scared, ponies up cash for Windows licences and kills the linux project.
    It's all FUD tactics.

  17. Avatar for Ogre
    Ogre May 14th, 2007

    Yeah, I'm not sure how to react on this one either. I think MS is simply afraid that many of their patents are going to be thrown out simply because they were obvious or someone else had clearly had "prior art" but the patent clerk guys decided they didn't care or whatever. So I'm guessing this is just a final attempt to maximize revenue from a horribly broken, exploitable patent system.
    Reminder that the main issue with Software Patents is that they're essentially just mathematical algorithms and algorithms can't and shouldn't be patented. What are computers? Really big, complex calculators that run implementations of algorithms. (Imagine if someone patented the Pythagorean Theorem or Matrix Math.)
    The graphical art contained within software, well that's a different thread.
    Personally I like a lot of the stuff Microsoft does but the whole patent fiasco that's been going on since the 1970's (or whenever it was that MBA's suddenly became a valid degree) and the fact that they're taking advantage of that broken system has always left me somewhat uncomfortable with my decision to support them. I suppose inside I've always hoped they would eventually "get it" and help lobby to change the patent system for the benefit of all society (think anti-Eolas). But this current, new strategy is somewhat disconsering.
    Maybe Mike Gunderloy is onto something? If Loonix didn't suck so much I might try switching... again. Maybe... someday.

  18. Avatar for Bob McBob
    Bob McBob May 14th, 2007

    Ohhh, it's bad PR! A bunch of slashdot readers will like Microsoft less! And their mothers still won't care. If they ever get jobs, their boss won't care either.
    If I ever get a time machine, I'm going to hire Jobs & Woz a really amazingly good lawyer, and thus get Gate's ass handed to him on a platter.
    If anyone at Microsoft had one thousandth of a percent of the respect they claim to have for "intellectual property" then Windows wouldn't exist today.
    They got rich off other people's poorly defended property, and now they're going to defend that property for themselves.
    And they'll get away with it, because the big players (IBM, Oracle, etc) rely on the patent system enough that they'll help defend it.
    If any Linux developers had actually broken into Microsoft and stolen technology, I wouldn't care about them. Any system that makes it illegal to independantly reinvent an algorithm is broken - and noone who has any real power actually cares, because it's broken in their favour.
    Still, it's good to know that Vista is so wonderful that it can best compete on lawsuits instead of value to the consumer. Er. Um. Interesting.

  19. Avatar for Vic
    Vic May 14th, 2007

    When a company does not do enough to enforce their patents, they put themselves in danger of losing those patents. It was a bad day for Google's lawyers when the verb "google" was added to the dictionary. This sort of thing makes patents difficult to defend. When something is too common patents lose their value.
    That is probably the real reason Microsoft is doing this.

  20. Avatar for Scott
    Scott May 14th, 2007

    "Google" is a trademark. You have to enforce trademarks, not patents. Once you are granted a patent, it's up to you whether or not you want to sue people for infringing upon it. But it can't be revoked. (IANAL)
    Whether or not they intend to sue or actually do sue anybody, they've started losing even more mindshare among developers with this kind of action. Mike Gunderloy is just the tip of the iceberg. What if MS has a patent for "an application that stores content in a database and provides an RSS feed"? Subtext? What happens if they look at SubSonic and decide it's a little too much like LINQ or their entities framework?
    Attacking Open Source isn't just about linux developers. It's extrememly short sighted and extremely Balmer.

  21. Avatar for Mike Minutillo
    Mike Minutillo May 14th, 2007

    @Jay - On a second reading I guess that I see the same message. My original reading was that it was all focussed on what developers would do and how they would react. I'm not sure that is Microsoft's intent at all. They don't need to enforce anything or sue anyone. They just need to scare potential end-users of software away from developers claiming to use alternative technologies.
    Developers will stop using it because it doesn't sell. If people don't use software it tends to go away. This is equally true of commercial and Open Source software.
    This one move could potentially thin out the Open Source alternatives leaving a big company to just come in and sweep up the rest.

  22. Avatar for Haacked
    Haacked May 14th, 2007

    @Mike - Yes, I agree that this smacks of FUD tactics designed to scare potential end-users.
    However, just because I might not directly be targetted (although I have installed Ubuntu on a VM), that doesn't mean I should just sit by and say, "This is fine, it doesn't affect me."
    I consider myself to be part of a larger community that *is* affected by these strong arm tactics. This time, it might not affect me personally, but next time it might.
    @Jason, nothing is special about Linux that they shouldn't abide by patents. In fact, they take great care to do so.
    In this case, Microsoft is avoiding specifics because they know the patents will be challenged, and many likely to prove illegitimate. So instead, they are simply creating an environment of fear in an attempt to disrupt a potential competitor, not to protect its own patent. This is the problem here.
    As Tim Bray points out, in his four words for Microsoft, they should "Litigate or Shut Up."
    Or even better, work with these projects first to give them a chance to amend the code to be non-infringing, before resorting to the almighty lawsuit.

  23. Avatar for Robbie
    Robbie May 14th, 2007

    I think the problem is that one half of Microsoft thinks all Open Source is bad. And the better half, only thinks Linux is bad.

  24. Avatar for you've been HAACKED
    you've been HAACKED May 31st, 2007

    Did Microsoft Violate TestDriven.NET's EULA to Defend Its Own EULA?

  25. Avatar for Community Blogs
    Community Blogs May 31st, 2007

    Jamie Cansdale recently wrote about some legal troubles he has with Microsoft. We were in the middle

  26. Avatar for Rob Conery
    Rob Conery June 16th, 2007

    I'm A Litte Freaked Out

  27. Avatar for Mike
    Mike July 11th, 2007

    First time posting here but an interesting discussion. One thought about the Office Ribbon (since that seems to be one of the pivotal things that Microsoft is being anal about in their patent defense thing): I personally hate the ribbon anyway, and would not want to license it from Microsoft OR try to mimic it.
    Instead.... maybe a group of OSS developers, who have a widely varied experience and little if any loyalty to any particular company other than possibly their own, should come up with a brand new style of user interface, that doesn't infringe on Microsoft's interface elements... who knows, the result could be something truly innovative (the Ribbon is not innovative... it's just a slightly new take on the traditional toolbar). And then patent it so that MS doesn't do it first.
    Just my $0.02 worth.

  28. Avatar for Coding Horror
    Coding Horror July 29th, 2007

    Every practicing programmer should read the Wikipedia article on software patents, if you haven't already. Many software companies are of the opinion that copyrights and trade secrets provide adequate protection against unauthorized copying of their innovations. Companies such as...

  29. Avatar for Coding Horror by Jeff Atwood
    Coding Horror by Jeff Atwood July 29th, 2007

    Every practicing programmer should read the Wikipedia article on software patents , if you haven't

  30. Avatar for Programming
    Programming July 30th, 2007

    Every practicing programmer should read the Wikipedia article on software patents , if you haven't