Linus Responds To Microsoft Patent Claims

An anonymous reader writes "Linus Torvalds has a sharp retort to Microsoft executives' statements in a Fortune article that Linux violates 235 Microsoft patents. In an emailed response to InformationWeek's Charlie Babcock, Torvalds writes: 'It's certainly a lot more likely that Microsoft violates patents than Linux does.' He added: 'Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousand of really "fundamental" patents... The fundamental stuff... has long, long since lost any patent protection.'" Torvalds also commented on Microsoft's stated intention not to sue Linux users: "They'd have to name the patents then, and they're probably happier with the FUD than with any lawsuit."

Comments

Schwartz (Sun) responds

[dotpavan]

"So what's my view on this interview in Fortune - in which one of Sun's business partners claims the open source community is trampling their patent portfolio?

You would be wise to listen to the customers you're threatening to sue - they can leave you, especially if you give them motivation. Remember, they wouldn't be motivated unless your products were somehow missing the mark.

All of which is to say - no amount of fear can stop the rise of free media, or free software (they are the same, after all). The community is vastly more innovative and powerful than a single company. And you will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities - or the Fortune 500 - that have found value in the wisdom of the open source community. Open standards and open source software are literally changing the face of the planet - creating opportunity wherever the network can reach.

That's not a genie any litigator I know can put back in a bottle."

Source: http://blogs.sun.com/jonathan/entry/what_we_did

patents are not that ancient

[stites]

"Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really 'fundamental' patents," Torvalds said in a response to questions submitted by InformationWeek. But he doesn't like any form of patent saber rattling. "The fundamental stuff was done about half a century ago and has long, long since lost any patent protection," he wrote.

I worked for IBM developing operating systems during the 1960s. Software patents did not exist at the time and IBM patented no software. However there is a huge amount of unpatented prior art from about 1963 onward that can be used to invalidate any operating system fundamentals patents claimed by Microsoft.

------------------
Steve Stites

Re:constitutional lawyers?

[Raul654]

In the US Constitution, it's Article I, Section 8, Clause 8

Novell has replied to Microsoft's claim as well

[dfoulger]

From the Novell press release, issued yesterday:

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."

The commentary on Groklaw is interesting as well

Re:constitutional lawyers?

[bigpat]

Which article of the constitution, or, rather, any constitution, gives patents authority? Article I section 8 of the US Constitution "The Congress shall have power" ... "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;" - US Constitution

Show the proof!

[leuk_he]

or loose the rights for your 1 billion dollar suit!

also people have repeatable and publicly been requesting that microsoft identify what patents they think are being infringed. M$ should tell them or loose the right to get remedies.

35USC287:
TITLE 35--PATENTS
PART III--PATENTS AND PROTECTION OF PATENT RIGHTS
CHAPTER 29--REMEDIES FOR INFRINGEMENT OF PATENT, AND OTHER ACTIONS
Sec. 287. Limitation on damages and other remedies; marking and notice.

says "(3)(A) In making a determination with respect to the remedy in an
action brought for infringement under section 271(g), the court shall
consider-- (i) the good faith demonstrated by the defendant with respect to
a request for disclosure, ...
(B) For purposes of subparagraph (A), the following are evidence of
good faith:
(i) a request for disclosure made by the defendant;
(ii) a response within a reasonable time by the person receiving
the request for disclosure; and
(iii) the submission of the response by the defendant to the
manufacturer, or if the manufacturer is not known, to the supplier,
of the product to be purchased by the defendant, together with a
request for a written statement that the process claimed in any
patent disclosed in the response is not used to produce such
product.

The failure to perform any acts described in the preceding sentence is
evidence of absence of good faith unless there are mitigating
circumstances. Mitigating circumstances include the case in which, due
to the nature of the product, the number of sources for the product, or
like commercial circumstances, a request for disclosure is not necessary
or practicable to avoid infringement.
(4)(A) For purposes of this subsection, a ``request for disclosure''
means a written request made to a person then engaged in the manufacture
of a product to identify all process patents owned by or licensed to
that person, as of the time of the request, that the person then
reasonably believes could be asserted to be infringed under section
271(g) if that product were imported into, or sold, offered for sale, or
used in, the United States by an unauthorized person. A request for
disclosure is further limited to a request--
(i) which is made by a person regularly engaged in the United
States in the sale of the same type of products as those
manufactured by the person to whom the request is directed, or which
includes facts showing that the person making the request plans to
engage in the sale of such products in the United States;
(ii) which is made by such person before the person's first
importation, use, offer for sale, or sale of units of the product
produced by an infringing process and before the person had notice
of infringement with respect to the product; and
(iii) which includes a representation by the person making the
request that such person will promptly submit the patents identified
pursuant to the request to the manufacturer, or if the manufacturer
is not known, to the supplier, of the product to be purchased by the
person making the req

Re:Duty to Mitigate

[MightyMartian]

You're talking about trademarks. Patents are not bound by that notion of enforcement.

I suspect legal types are going to be in the same bind as anyone else. Unless Microsoft specifically states what each of these 235 patents are, it's like boxing with the wind. SCO did the same thing, and for precisely the same reason. A moving target is going to last a lot longer than one that's nailed down.

Re:Sad or Telling?

[civilizedINTENSITY]

"sue Microsoft over some alleged infringements in MS-DOS"

It was lots worse than that:

In 1991, Microsoft employees launched an exceptionally dastardly plan to kill another competitor, DR DOS. DR DOS sales threatened MS-DOS, the early predecessor to Windows 95 that established Microsoft's operating system monopoly. DR DOS sales were on the rise--they doubled from $15 million in 1990 to $30 million in 1991. They soared again to $15 million in the first quarter of 1992 alone. Then disaster struck.

Microsoft was writing Windows 3.1, an important upgrade to the hugely popular Windows 3.0. In September 1991, a plan was hatched to use this upgrade to kill DR DOS. In an email discovered by the Dept. of Justice, the head of Windows development and Microsoft VP David Cole wrote, "aaronr had some pretty wild ideas after three or so beers--earleh has some too." The plan was to plant code into Windows which would "put competitors on a treadmill" and cause the system to "surely crash at some point shortly later." In order words, Windows would intentionally bomb if it detected DR DOS.

At this time, many computer vendors were considering switching from MS-DOS to the superior, cheaper DR DOS. Microsoft was especially concerned about IBM. Wooing these PC vendors was crucial to the future success of DR DOS, as was the good will of "early-adopters" (i.e., technically savvy users who drive new trends in the computer industry).

These vendors and early-adopters were also the same people who received a Christmas "beta" pre-release of Windows 3.1. They discovered--to their horror--that using DR DOS would cause vague system errors to pop up in Windows 3.1; they dumped DR DOS in droves. By the fourth quarter of 1992, sales of DR DOS had dropped from $15 million to only $1.4 million. The once mighty competitor became a has-been and was sold to Novell and later Caldera.

Re:Sad or Telling?

[SEAL]

I bet most institutions would be dead in the water if this advice were taken quite literally, as Microsoft used BSD code in there TCP/IP stack for a long time. Goodbye 95/98/NT/2000.

Microsoft to this day, still has many tidbits of BSD code sprinkled throughout its Windows and Visual Studio codebases. I used to work on the Visual Studio team, and I'm still friends with a number of the devs over there. You can always do the classic:

strings c:\windows\system32\ftp.exe |grep Regents

and be treated to...

@(#) Copyright (c) 1983 The Regents of the University of California.

(note this is still present, even in Vista)

Re:The assimilation of Linux..

[GaryPatterson]

Minor nitpick - the phrase or when Apple stole from Xerox should be more correctly written as or when Apple licenced UI IP from Xerox.

Although it makes a good, dramatic story, the one about Apple stealing the GUI from Xerox was never true. Xerox sued for more money when they realised what they'd given away, but there was a licence in place and Xerox profited from the Apple shares it was given.

I've always thought that the story was put about by Microsoft apologists, keen to muddy the water on the Microsoft-Apple UI lawsuit. Now it's taken on a life of its own, and people just assume it's true.

Re:constitutional lawyers?

[KarmaMB84]

Here's the original text that was going to be inserted directly into the Constitution and formed the basis of the Second Amendment. The intent of the writers is pretty clear.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

What we have now is text wrangled around by the the House and Senate and written in a fashion that is now out of custom. The meaning is still the same as reaffirmed by the judiciary and even Congress repeatedly.

Re:Sad or Telling?

[1lus10n]

AD is still just LDAP with a schema and some tools. They can patent try to patent that all they want, there is scads of prior art.

Re:Sad or Telling?

[Ravnen]

Yes, it is well known to anyone who's looked into the workings of the SCO Group.

Caldera bought DR-DOS from Novell in 1996, for $400 thousand, long after the alleged damage to the product had been done. The company settled with Microsoft over the DR-DOS lawsuit for an 'undisclosed sum' in January 2000, which Microsoft valued at $155 mn, but others speculated was actually 'much higher'.

http://news.bbc.co.uk/1/hi/business/600488.stm

http://www.windowsitpro.com/Articles/ArticleID/804 5/8045.html?Ad=1

In August 2000, Caldera agreed to acquire the Santa Cruz Operation's Unix products, including UnixWare and the SCO name. Caldera later changed its name to The SCO Group, but Caldera management remained in charge, i.e. the company was actually Caldera, not the old Santa Cruz Operation, which became Tarantella, and in 2005 was acquired by Sun Microsystems.

http://www.infoworld.com/articles/hn/xml/00/08/02/ 000802hncaldera.html

http://www.sun.com/software/tarantella/index.xml

Caldera's financial statements (see www.sec.gov) show it lost more money in 1999 and 2000 than its total revenue for each year, and had negative cash flows from operations. How was such a company able to issue equity that investors actually bought, pay for its ongoing losses and come up with enough money to acquire and sustain UnixWare, another loss-making business, along with the SCO name, in a deal valued at $91 mn? The answer is that the entire operation was funded by the DR-DOS lawsuit.

http://practical-tech.com/operating-system/linux/c aldera-buys-sco-unix-professional-services/

http://www.newsforge.com/os/04/03/30/0047220.shtml