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

Sad or Telling?

[u-bend]

Is it kind of sad that such retorts are necessary? Or is it telling, that M$ is continues to resort to such SCO-like tactics?

Re:Sad or Telling?

[smilindog2000]

That was a funny article. Linus is probably right... Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.

Re:Sad or Telling?

[cyphercell]

I hope that it's telling, after all Microsoft is essentially following tactics from IBM a company that is not, primarily in the software industry. They have essentially hired IBM's patent lawyer, Marshall Phelps

Re:Sad or Telling?

[smilindog2000]

Oh! And we should keep the list secret!

Re:Sad or Telling?

[WrongSizeGlass]

Just remember kids that you can't spell Microsoft without SCO (and MIROFT).

Re:Sad or Telling?

[MightyMartian]

I think we all know that the kernel is probably safe; except for some of the drivers. I'll wager that Microsoft is eying FAT and NTFS. Still, it's awfully easy to fix that. Just distribute a kernel without those drivers in the source, and just let someone outside the US distribute the patches, compiled modules, as well as compiled kernels. Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?

The problem here is not that MS would ever dream of going to court, it's that the FUD could be very effective at slowing adoption. I suspect that if anything, it's OpenOffice that would feel the wrath of being dragged into court. Going after the kernel is ludicrous, and would likely turn up absolutely nothing.

Re:Sad or Telling?

[__aaclcg7560]

Better yet... put Microsoft on double secret probation!

Re:Sad or Telling?

[Anonymous Coward]

Is it kind of sad that such retorts are necessary?

Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

I suspect that lots of organizations were in such a boat and Microsoft played their cards accordingly.

Re:Sad or Telling?

[WhatAmIDoingHere]

No, the author of the article you refer to wrote that Linux is dead and has "sold out" because Linus has a day job.

Re:Sad or Telling?

[ch-chuck]

Actually, from MICROSOFT you can spell:

SCO TO FIRM
SCO FROM IT
SCO OF TRIM

and permutations thereof.

Re:Sad or Telling?

[brunson]

No, you misread the article completely. What it said is that Linus is dead and you should get a day job.

Re:Sad or Telling?

[rasputin465]

Dell's move is huge for Linux as a jumping-off point, and MS (imho) is trying to keep it from looking like Linux is a real competitor.

Yeah, and the ironic thing is that, by making all these spurious accusations, M$ is only validating Linux as a viable competitor.

Re:Sad or Telling?

[Anonymous Coward]

I'M FOR COST

Re:Sad or Telling?

[rainman_bc]

I'll wager that Microsoft is eying FAT and NTFS I wouldn't be surprised if they've somehow tried to patent SMB/CIFS also... (Which incidentally is shipped with SCO Unix also.)

Re:Sad or Telling?

[cayenne8]

"Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?"

Is compatibility even an issue here? I thought you could reverse engineer or the equivalent thereof, to make systems compatible. Isn't this even one of the tennents of the DMCA? I know that isn't really patent related, but, is it against the patent law to interoperate with another system?

Re:Sad or Telling?

[flyingfsck]

Good - your company obviously wasn't serious about open source software anyway. Note that Redhat pledged to indemnify their users, so your powers that be were not really serious about anything.

Re:Sad or Telling?

[MightyMartian]

I suspect that Samba would be largely immune, as a good chunk of it comes from the olden days of the IBM-Microsoft alliance, and thus is likely under IBM's shield. Where Samba could get into real trouble is once version 4 is production-ready and people start implementing Active Directory networks on *nix boxes. Then you'll see the shit hit the fan, because I'll wager Microsoft has stuffed its portfolio full of AD-related patents.

Re:Sad or Telling?

[veganboyjosh]

i prefer "of scrotim"

Re:Sad or Telling?

[frodo from middle ea]

You need to change jobs, because the only damage done here, is to your company.

For those companies who do get Open Source, this is latest round of Microsoft FUD is nothing more than, to joke about during lunch time.

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?

[Anonymous Coward]

Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

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. Even if your not totally literal, there are tons of open source stuff that every company makes use of everyday, even if it doesn't register in the minds of the layman.

• Perl scripts that make reports? Gone, you can't run the reports without the open source interpreter.
  
• MySQL/Postgresql databases? Just because you're using Access on the front-end doesn't mean Access as the data store.
  
• Email? Even if you're running Exchange, you might still be protected with a hardware anti-spam device, which often runs a modified version of spam-assassin.
  
• Web filters/proxies? Again, most hardware based filters run off of an open source backend, in this case Squid.
  
• Web servers?
  
• File servers?
  
• Even not being able to use FireFox would upset some VIP somewhere, enough to get the decision reversed.
  

I'm sure there are more, but I believe that if all the admins of the world who got this request complied, Microsoft would be lynched in a heartbeat.

In fact, there should be a "Open Source or Die!" day where all machines that run open source software turn off. The inability to do anything would boggle the corporate mind.

Re:Sad or Telling?

[MightyMartian]

Would you care to bet that Microsoft will claim AD is an innovation on LDAP? I'm not saying that this or any other potential MS patent claim is legitimate. That's not the point. That's not the point of this whole topic. We all know that most (if not all) of MS's 235 patents are probably obvious inventions or have tons of prior art.

Re:Sad or Telling?

[vertinox]

I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

Could you give me a hint of which financial company? I'm worried that I'm keeping my nest egg funds in a company who lets idiocy run its course without actually checking the facts. I suppose such a company would likely panic for any non-serious market trends which leads to me being poor because someone freaked out over something that was simply not true.

Re:Sad or Telling?

[MightyMartian]

You know how the SCO lawsuit slowed adoption? It will be just like that.

No it won't be. SCO was, at the best of times, a bit player. I doubt that many legal departments even knew about that much about the case, as the mainstream media by and large abandoned it once it was clear that IBM was calling SCO's bluff.

Microsoft is not a bit player, and it's FUD will have an effect. Legal advisors are going to be telling their clients and/or bosses to stay far away from open source, or at the very least look into paying MS's license extortion (which is almost worse than not using open source at all). It might even mean that some commercial contributors may even have second-thoughts.

At best, this is going to be a roadblock. At worst, it's going to mean very tough times. Microsoft is not SCO. It's a powerful and deep-pocketed corporation that has ran over almost every attempt to slow it down.

Re:Sad or Telling?

[Dan Ost]

Why not take some time to write a well reasoned response that you can send up the management chain and to the legal department. Point out how your company is currently benefiting from open source and how painful it would be to replace the open source currently in your infrastructure.

This is an opportunity to educate. Don't waste it.

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:Sad or Telling?

[BillyBlaze]

The EETimes article is an identical copy of the Information Week one. But I am getting pretty sick and tired of online news sources not linking to their sources. Yes, it means I'll leave your site for the primary source, but I'm much more likely to come back later.

Re:Sad or Telling?

[Ravnen]

The details of the conflict between Microsoft and Digital Research don't matter. The point is that DR-DOS was a product developed by Digital Research Inc. (DRI, not to be confused with DEC), and had nothing to do with Caldera. If DRI had sued Microsoft, or if Novell had sued after it acquried DRI, when DOS was still relevant in the marketplace, that would have been one thing, but that isn't what happened.

By 1996, when Caldera bought the rights to DR-DOS from the imploding Novell, the product was fully obsolete. The only significant value of DR-DOS to Caldera was in allowing it to launch a lawsuit against Microsoft. The DR-DOS lawsuit was settled before going to trial, with a large payment from Microsoft to Caldera. It was not only the prototype for Caldera's later Linux lawsuit, it also funded Caldera's acquisition of the UnixWare source code and SCO brand, making the Linux lawsuit possible.

Re:Sad or Telling?

[Petersko]

"You need to change jobs, because the only damage done here, is to your company."

He works for a large financial company - one large enough to have its own law department. While eliminating open source software from their infrastructure is certainly unreasonable, it's unlikely that they'll be "damaged" by it. There are plenty of good closed-source solutions out there.

As for having to change jobs, well, changing jobs on the basis of software morality (a dodgy proposition at best) might be reasonable in a very select few markets. Lots of people can't simply throw a tantrum and quit just because they don't get their way.

Re:Sad or Telling?

[0123456789]

Just 'cos something is a standard, doesn't mean there aren't patents involved. I'll wager that there's a whole host of patents related to JPEG images for example.

Re:Sad or Telling?

[bl8n8r]

I work for a large organization where the lawyers are seasoned and don't run amok from simple allegations. We have a large installation of solaris and linux hardware with some Redhat clustering coming down the road for Oracle. The plans are not changing until/if/when the legal system determines the Microsoft allegations are founded and laws have been broken. Until then, Microsoft is, as usual, probably full of shit. As I suspect your post is.

Re:Sad or Telling?

[frodo from middle ea]

I use to work for a big big financial company. They had lots of stupid policies, like I.E. only. (wouldn't even allow us to install firefox). google groups was banned because people could browse hacking groups (I am not kidding ).

And yet they were hit every time a Microsoft worm was on the loose. They spent countless hours recovering from these break outs. So if you choose to close your ears and eyes, and insist on using microsoft only products, then you CAN have damages.

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?

[1lus10n]

No, you change jobs when your boss tells you to use a screw driver to hammer nails into place. Believe it or not, microsoft and linux dont always live in the same space. Linux/unix is much more well suited to enterprise backends and massive farms. MS is better for homogenized workstation environments and small workgroup installs where depth of knowledge isnt as important as availability of knowledge.

Re:Sad or Telling?

[kestasjk]

No need, I've already made the list. And damn Microsoft violates a lot of patents; 312 to be precise.

Re:Sad or Telling?

[rbanffy]

It will never be a real threat until Dell starts shipping boxes with OSX to Fortune 500 companies.

As long as it's in the realm of the willing hacker, MS is quite safe.

Re:Sad or Telling?

[kimvette]

Not practical, considering that every USB "drive," flash card, and external drive ships Fat32 formatted. However, FAT is >25 years old now, so any patents they MIGHT have on it are either long expired or invalid.

Re:Sad or Telling?

[cafucu]

I suspect that Samba would be largely immune, as a good chunk of it comes from the olden days of the IBM-Microsoft alliance, and thus is likely under IBM's shield. Where Samba could get into real trouble is once version 4 is production-ready and people start implementing Active Directory networks on *nix boxes. Then you'll see the shit hit the fan, because I'll wager Microsoft has stuffed its portfolio full of AD-related patents. Even if they have the patents, they may not hold up. Many similar cases (like old console gaming platforms being reverse-engineered) were granted to the defendant because their "hacking" of the firmware was necessary to provide interoperability. It may not be illegal to reverse-engineer something if it's the only way available to be able to interoperate with the system.
See:
http://www.chillingeffects.org/reverse/faq.cgi#QID 195

Re:Sad or Telling?

[MadMidnightBomber]

US patent #8324251 : From time to time the currently operating application shall cease working for no apparent reason. The typical means of exit shall be a crash; at this time nothing useful is to be written to the event log. A crash dump may be offered as if to taunt the user 'if you had the source you could fix this yourself, nyaah'.

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

Re:Sad or Telling?

[revengebomber]

Actually, they violate an infinite number of patents. Haven't you heard of Schrödinger's Code?

Re:Sad or Telling?

[Hal_Porter]

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.

This is the famous AARD code, written by aaronr

http://members.ozemail.com.au/~geoffch@ozemail.com .au/editorial/aard/firstpublic.htm

It's actually not as dastardly as you think. First it was disabled in the release code, it only warned people in the Beta. Secondly, Windows was really mixed up with Dos. For example, it called an undocumented function to get a pointer to the Dos data segment and modified that data segment. It also patched parts of the Dos code segment - it literally rewrite the code in memory. So most likely it would have issues running on any Dos that wasn't an exact binary copy of MSDos, and only a relatively recent Dos at that. I.e. Windows 3.x has code like this

code_ptr = NULL;
data_ptr = NULL;
 
// get the code and data segments. Both functions are undocumented
data_seg = GetDosDataSeg();
code_seg = GetDosCodeSeg();
 
if (DosVersion == 6.0 )
  {
  code_ptr = FARPTR(code_seg:aaaa);
  data_ptr = FARPTR(data_seg:bbbb);
  }
 
if (DosVersion == 5.0 )
  {
  code_ptr = FARPTR(code_seg:cccc);
  data_ptr = FARPTR(data_seg:bbbb);
  }
 
if ( code_ptr && data_ptr )
// Patch away.
else
// shit unrecognized Dos version. Disable some features or die with an error?

Re:Sad or Telling?

[Creepy]

I posted something about this on the last thread - SMB/CIFS has a couple of obsolete Microsoft patents that Samba implements, but not as documented in the patents themselves (they would not work in a UNIX-like OS). The main part of Samba is based on specs designed by the Storage Industry Network Association, which MS used more as a guideline than how they implemented it. Here's an article about it, and also see Samba's web site.

The only other patent I know of on CIFS is not owned by Microsoft, it's a Cisco patent

MS probably still argues that those two patents are being violated and MS even spread some FUD by issuing a license for using CIFS on other OS's but excludes the GPL (Samba's license).

Things that are obvious, but Microsoft has patents on, that I'm aware of (thank you, bookmark file):
patent on RSS feeds
FAT patent 5579517 (which I believe has now been rejected as obvious after appeal and my ref was link-dead)
Spam filtering
IsNot in BASIC
or how about this one, which is basically sudo
or this one which would be violated as far as I can tell by a Linux OS module updated over an https connection, though I think it would also need to include verification like an md5 checksum to fall under that patent.

and a couple that I don't think would affect Linux:
a patent that is basically the same as XUL, but for Windows only.
a patent on this one on learning, which is broad and vague - see this guy's response I found in a search which explains the stupidity better than I could (my original link is again dead - I need some housecleaning).

IMPORTANT NOTICE

[Anonymous Coward]

Please note that this article violates 207 Microsoft patents. Anyone commenting on it will be violating a further 703 patents. Except me.

Re:IMPORTANT NOTICE

[interiot]

You are coming to a sad realization that in Soviet Russia, new Microsoft patent meme infringes you 123 times. Cancel or Allow?

Re:IMPORTANT NOTICE

[rvw]

Please note that this article violates 207 Microsoft patents. Anyone commenting on it will be violating a further 703 patents. Except me. I think that 42 will just do. Isn't that the answer for everything? I bet this number isn't a coincidence.

Re:IMPORTANT NOTICE

[StarfishOne]

Too bad that for those 123 times there is not an easily accessible 'Cancel All' button.. ;P

constitutional lawyers?

[Lord Ender]

Can someone please explain to me how software patents "promote science and the useful arts?"

Wouldn't a patent law which does NOT promote science and arts be unconstitutional? Or am I misreading the constitution?

Re:constitutional lawyers?

[Raul654]

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

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

Re:constitutional lawyers?

[koreth]

Software patents that were reviewed by qualified examiners and only granted if they were truly novel and non-obvious would promote science and the useful arts. I think far fewer people would have trouble with the concept if that were the reality -- in that case the intended bargain (the patent makes public the details of an idea that nobody else would have thought of on their own) would apply.

But the "grant first, ask questions later" approach of today's patent office, where one can patent an implementation that any programmer of above-average skill might come up with when presented with the same problem, means that we'd be better off with no software patents at all.

I'd be happy with either fixing the examination process or dumping software patents.

An example of a software patent that would reasonably be granted under a good examination regime, even though it did irk a bunch of people back before it expired, would be the RSA patent. That was not obvious to 99% of the skilled practitioners of the art until it was published. (And even now I expect most programmers have at most a high-level understanding of why it works, me included.)

Re:constitutional lawyers?

[Anonymous Coward]

No.

Software is obsolete in 5-10 years.
A patent last for 20 years.
Copyright lasts for 95 years.

When the incentive monopoly lasts well beyond the life of the invention, the effect is obviously not promoting innovation. The effect is innovation suppression and wheel reinvention.

Re:constitutional lawyers?

[coren2000]

Patents promote inventors releasing their inventions to the public.

eg. Someone researches a successful a cure for AIDS in their basement. w/o the protection provided by patent law the inventor of the cure has people come into his home, be charged a fee, take the cure and leave. He would make damn sure that the cure was not smuggled out of his home, in case of reverse engineering.... WITH protection provided by patent law, the inventor submits his patent and sells hundreds of cures to Pharmacies all over the world, he is no longer worried that someone will take his cure formula and use it for their own ends.

Re:constitutional lawyers?

[The_Wilschon]

... states that Congress has the authority to establish laws that protect these to "promote the progress of science and useful arts."

Not quite exactly right. The constitution gives Congress the authority to promote the progress of science and useful arts by establishing these protections. It is a subtle but important distinction, and places the emphasis very firmly upon the promotion of progress of science and useful arts.

Re:constitutional lawyers?

[Lord Ender]

We are talking about software, not a cure for AIDS.

I work in a software company, and I can assure you that we would be writing just as much software if there were no software patents.

Also, we have NEVER wondered how to write a particular algorithm, then found the solution in some patent disclosure document. Do you realize how absurd that sounds?

Re:constitutional lawyers?

[whoever57]

- Science must be making progress in order to be promoted. DRM is regression of rights, thus it cannot be protected. - Arts must be useful to be protected. I doubt entertainment can be considered "useful" in the way that was meant when the Constitution was written.

You are applying logic to laws. Never works. In this case, I think you will find that the sole judge of how the laws meet the goal is Congress. I think this came out in the challenge to the Sonny Bono/Mickey Mouse copyright extention. The SCOTUS decided that it was up to Congress to decide how best to promote the "useful arts", and if Congress felt that it was best achieved by locking up our cultural heritage, then so be it. One would also expect that SCOTUS would hold that it was up to Congress to decide what constitutes a "Useful Art", since that it a preamble to the actual phrase that authorizes Congress to create copyright laws.

Essentially what I am saying is that the part "To promote the progress of science and useful arts" is meaningless and the only important part of that section is: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Re:constitutional lawyers?

[MightyMartian]

The problem is that, unlike actual inventions, a patent troll can quickly submit hundreds of software patents. Nowadays, you've got everybody and their dog, from Microsoft to Sun to Amazon applying for patents. The system, which has long had problems handling the load of more traditional patents, simply breaks down. The amount of money that it would require to have each software patent reviewed would be staggering. Do you think having "patent pending" is any better security than "patent # 232437442"?

Re:constitutional lawyers?

[EvanED]

He or she is obviously more interested in personal wealth than the invention and than those in need of the invention. In the first scenario, if the invention did eventually get out, everyone could benefit from it, regardless of their wealth. The world would be a better place. In the second scenario, the inventor makes a killing, and the cure is held hostage, and only those willing to pay up will get the cure. The world is a better place for the inventor and the rich.

The first one is nice, but what if the alternative is NO cure? Then which is better, no cure, or greedy bastard's cure?

Re:constitutional lawyers?

[Hatta]

Essentially what I am saying is that the part "To promote the progress of science and useful arts" is meaningless and the only important part of that section is: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

In much the same way "A well regulated militia, being necessary to the security of a free state" is meaningless and the only important part of that section is: "the right of the people to keep and bear arms, shall not be infringed."

Re:constitutional lawyers?

[andy314159pi]

Nowadays, you've got everybody and their dog, from Microsoft to Sun to Amazon applying for patents.

Dear patent office,
My dog would like to withdraw his patent application for a method of peeing on a fire hydrant. After properly smelling the fire hydrant he discovered that some other dogs had apparently already discovered the method. We will also withdraw all tort against users of the peeing on the fire hydrant method. Our lawyers had previously counseled my dog on the probably illegitimacy of the application. But for whatever reason, he was unable to comprehend the advice of his attorneys when they said that the method may not qualify as non-obvious to those skilled in the art of peeing. I thank you for your attention to this matter.
Sincerely,
Dog Owner

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:constitutional lawyers?

[kegon]

I work in a software company, and I can assure you that we would be writing just as much software if there were no software patents.?

The chances are you aren't checking patents to see if the algorithm you just implemented is already patented. It's unreasonable most of the time.

The way the system works, the author must write a clear explanation of the invention but then they can shroud it with rarely used terms, give it an awkward or vague title; finally a lawyer turns it into legally correct but very confusing terms in order to make sure you get maximum scope. Reading patents is asking for a headache.

But this is exactly what you do with patents with the current system. You file your invention and then hit someone on the head with it. This is exactly what Microsoft is doing. I agree with Linus and others that the probability is that 90% of them are trivial, but if you tell someone what patents they are infringing you are just giving them the opportunity to work around the patent and you can't beat them on the head with it. That's why Microsoft have taken this approach.

Also, we have NEVER wondered how to write a particular algorithm, then found the solution in some patent disclosure document. Do you realize how absurd that sounds? In a Utopian world, patents would be written nicely and you would simply search the patent database and quickly find if someone has had your idea before or solved a similar problem.

Re:constitutional lawyers?

[Eivind]

Nobody has. And indeed, this is THE most underused argument against software-patents:

Patents are intended to promote progress by rewarding publishing of a method with a time-limited monopoly on using the method.

But, infact, literally *NOBODY* uses published patents as a source of learning new methods.

To the contrary -- if you learn there's a patent on a certain way of solving a problem, you do your best to stay the hell away from that method, and you actively try to *avoid* reading software-patents, since knowing them could make you liable for willfull infringement.

Re:constitutional lawyers?

[Dausha]

"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."

Yes, but what you fail to notice is that the intent of the writers is irrelevant. First, the draft you cite was not the final, approved draft. You would have to look into the intent of those who _ratified_ the amendment, as they obviously approved the present Second Amendment. As far as the Constitution proper is concerned, there were over 1600 people involved in the process. To follow the "what was their intent" line imposes seeking those 1600 people or failing to achieve "intent."

Fortunately, we have a unifying principle courtesy of the Federalist and Anti-Federalist papers and Blackstone. That is, authors on both sides of the debate were of the impression that the Constitution (and by extension, its amendments) would be interpreted under the contemporary rules of statutory construction. As these Papers are considered the summary of opinion of both factions, this should be authoritative. Blackstone's Commentaries discusses these rules in sufficient detail. Unfortunately for some, those rules were wholely objective in nature; "screw what they were thinking, what did they _say_." Justice Thomas is more in line with this approach.

Under this approach, amendments are remedial laws; laws that correct a flaw in the law. This means we look at the law before amendment, the abuse under that law, and then interpret that amendment only as broadly as necessary to correct the abuse. (This is damning for the Amendment XIV as it was enacted only to ensure blacks were not subject to a different set of laws than the whites---but I think Section 5 is most compelling (Congress has sole power to enforce Amendment XIV, not SCOTUS).) The abuse corrected by Amendment II is that the Federal government under the unAmended Constitution had the power to disarm the people, who held absolute authority over the Constitution ("We the People...ordain and establish this Constitution...."). The right to keep arms was not limited to hunting or crime prevention, but to curb the abuses of government. Of course, States had that right absent an amendment in the state constitution; but as SCOTUS has upheld the Anti-Federalist fear of extending equity to law, Amend XIV could be (but curiously is the only of the original Bill of Rights) used to extend Amend II to the states.

I digress. My point is, you're citing a draft as being an authoritative reference as to the intent of an amendment. If I had a draft that said "all new tires should be slashed," but the later final version was "all new tires should be stashed;" would you say the draft was authoritative? If you wrote a check for 10000 USD, but later added a period, does that mean I should be allowed to ignore the final value of the check and deprive you of 9900.00 USD?

The problem with looking to draft versions of legislation is it allows people to change the meaning of the law based on which draft they chose. This sin has been applied too many times by courts to attain a different outcome than one mandated by statute.

My favorite abuse is when a bill was argued in Congress to ensure that minorities were fairly considered during employment decisions (i.e., no discrimination based on race). The minority thought that the language of the bill could be construed to mandate quotas, and the majority assured them that it _would not_ allow quotas. Within 3 years, SCOTUS had considered the law and construed that quotas were mandated, and cited the minority challenge that the bill so mandated. It's my favorite because those who voted for the law claimed the language did not mandate. If SCOTUS took intent seriously, they would not cite the minority opinion, but those who drafted and enacted the legislation. The truth is the language was ambiguous, so the Court should have said "no quota" and allowed Congress to remedy the error.

As for a patent law being unconstitutional, the answer is yes and n

Linus, Linux, IBM, and patents

[symbolic]

I'm not clear how IBM could own thousands of patents back in the 1960s- at that time it was clearly understood that software is a non-patentable "invention". Oh how I wish this common sense would be restored.

Gotta love Linus

[markov_chain]

"Don't you think that if Microsoft actually had some really foolproof patent, they'd just tell us and go, 'nyaah, nyaah, nyaah!'"

If I didn't know better....

[InfiniteSingularity]

It looks like Linus has been reading Slashdot the past couple of days.

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

Re:Schwartz (Sun) responds

[skoaldipper]

Great insight, but a tad bit Utopian I think. If linux were not commercially usable, which it most certainly is, there would be no money trail to follow, nor a suit for a suit (so to speak).

Re:Schwartz (Sun) responds

[chromatic]

But commercial companies will in most cases be faster, smarter, and first on the market.

+2, Hilarious

The Community is doing MS's work for them

[umStefa]

The more we post articles about how Microsoft is claiming patent violations, the better it is for Microsoft. This is simply a case of the more your story is in the news, the better the results for you. MS will NEVER sue anybody using Linux because the consequences of MS losing that case would be disastrous. Instead they will simply try and make managers (who in most organizations outside the tech sphere are technologically illiterate) make the following connection:

Linux = Patent Violation = Unreliable

Instead the Linux community should turn the tables on Microsoft and find a patent that MS has broken and feed the media the story that Windows users are going to get sued, hence making getting sued for using any OS a null point.

Heavens, the breaking news!

[FatherBusa]

Linus's comments strike me as indistinguishable from the hundreds of comments we've had on Slashdot on this issue in the last 48 hours.

How about we wait until there's some actual news on this story?

Re:Heavens, the breaking news!

[dfoulger]

You are right. Linus couldn't possibly be a little bit more informed than the rest of us about the fundamentals of Linux. I'm sure Bill Gate's comments about the internals of windows would be meaningless patter as well.

Re:Heavens, the breaking news!

[Dynedain]

Linus's comments strike me as indistinguishable from the hundreds of comments we've had on Slashdot on this issue in the last 48 hours.

What distinguishes his comment from all of the ones here on /. is that Microsoft will listen to his comments. Being who he is and what he's done, his comments hold weight in the discussion, whereas /. postings are just background noise (this one included).

Re:Heavens, the breaking news!

[MightyMartian]

The problem is that Linus's comments hold no more weight with XYZ Inc.'s legal department, who are by now recommending that the IT department's move to transfer file sharing from an expensive Server 2003 farm to license-free Samba network be suspended indefinitely. Sure, the guys in the IT department know as well as Linus, you or I that Microsoft is playing a dirty game, but Microsoft doesn't give a shit about Linus, you or I, but about the lawyers and officers of the companies that are actually considering Linux boxes with Samba and OpenOffice running on them.

Do you think it's an accident that OpenOffice was the only OSS project specifically named? Put this in the perspective of MS fighting various governments to stop OpenOffice file formats from becoming the defacto document standards. Hey hey Mr. Massachussetts, that document standard your talking about, well the baseline software that produces it violates a bunch of our patents. Now the talking heads that get into public meetings will have a new and very potent tool in the arsenal, the threat of legal repurcussions if a switch to open software is made.

Re:Heavens, the breaking news!

[Gorshkov]

Surely. Unfortunately, none of that insight is brought to bear on the issue at hand. Read the article. He says what everyone else has been saying for the last two days.

Some people's opinions *are* more important than others. Who do you think the PHB making the decisions is going to listen to - Linux, or FatherBusa?

Re:Heavens, the breaking news!

[dfoulger]

That I absolutely agree with. I think of Bill as a hacker who was in the right place at the right time with the right idea and just the right lack of ethics to build a great company. But that is often how the world works.

Its not exactly random. The Popular Electronics issue that introduced the Altair microcomputer kit was the obvious beginning of a major opportunity. I recognized the moment as being a pivot point where someone with the right idea could leverage a fortune. I talked about it with friends at the time. We just didn't know what we could do to take advantage of the moment. Bill Gates and his Harvard poker buddies (Paul Allen and Steve Ballmer among them) recognized the moment as well, but distinguished themselves by understanding what they could do with the moment. Bill hacked together a workable Basic that would run on the machine, dropped out of school to make it happen, and, to his credit, did.

Everything from that point on was riding the ever larger waves of the PC revolution. Bill adapted the Basic (sometimes badly, and often burying the bad hacks used to make one machine work with more bad hacks) to a growing range of machines. It doesn't make Bill a great programmer, and they did they steal and/or buy (sometimes both, as with DOS) many of the pieces they needed along the way). But the growth of Microsoft inevitably put Bill in the position of making the key technical decisions. To make those decisions he had to have a more than passing knowledge of the code (even when he didn't write it).

That doesn't make him smarter than the rest of us (any more than Linus Torvalds or Tim Berners-Lee smarter than the rest of us. But all three were in the right place at the right time to make something important happen, all three have a broad reputation based on having done so, and those reputations have given all three credibility that most of the rest of us don't have when they talk about their products.

Which is why, going back to the beginning of this thread, it didn't matter that Linus' comments on Microsoft's FUD reiterated things that others had said before. His words had special weight.

Re:Heavens, the breaking news!

[Daniel Phillips]

Insightful perspective, except this is a little too glib:

That doesn't make him smarter than the rest of us (any more than Linus Torvalds or Tim Berners-Lee smarter than the rest of us. I know first-hand that Linus is a brilliant engineer, a legendary bug hunter and more skilled with the English language than I am. The last being a pretty good trick since English is not his first language, or second even. The thing I hope to see before the end of this Mordor-against-the-world story: a head to head debate between Billg and Linus, if Billg has the nerve. I know Linus does.

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

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

The assimilation of Linux..

[abes]

Just for clarity's sake, it is probably about the time to start using the GNU/Linux nomenclature, not to mention actually differentiating between Linux as an operating system, and X Window running on top of it, with its various window managers.

I doubt M$ can claim that GNU is breaking any patents. As Linus as stated, its hard to imagine what internals of Linux that could intruding on a M$ technology, except maybe the Fat32 and NTFS compatability layers.

I remember reading one of the previous reports on this issue, and one of the claims was that user interface designs for things like the web browser and email clients were guilty. I was under the impression, when M$ stole from Apple (or when Apple stole from Xerox) all of this got settled.. It certainly strikes me funny M$ suing another company for stealing the UI. Besides the fact that the original IE looks a lot like Netscape's browser, and I'm pretty sure there were email clients before Outlook. Or the fact that Word looks pretty simlar to that of Wordperfect.

M$ might be right about the infringement .. they might actually have those patents. Whether they are enforcable may be a different matter. Especially considering the plethora of prior art. Except for Clippy and Bob, I'm not sure what they've done that is original.

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.

Why not start debunking FUD now?

[digitalderbs]

This is an innocent question. If the OSS community is ready to debunk these patents, do we really need Microsoft to reveal which of the 235 patents/infringements they're talking about? Couldn't we start a site/database that organizes all of Microsoft's patents and start documenting prior art and such for each. The patents themselves aren't hidden :

Microsoft's patents (6723 patents)
Microsoft's UI patent (155 patents)
(for example)

Why not start debunking the FUD to prove how spurious their claims are? Is it because this would be too much work? (Admittedly, 6723 >> 235)

Re:Why not start debunking FUD now?

[Chysn]

> Why not start debunking the FUD to prove how spurious their claims are? Is it because this would be too much work?

        Um... yeah. The burden of proof isn't on the Linux community here. Addressing even one patent before knowing the claims is a waste of resources.

Little did he know...

[shredthrashgrind]

that Microsoft actually has a patent on computerized retorts

If it could it would

[Recovering Hater]

But Microsoft can't actually bring the heat on any of the claims. For example: Gutierrez also said Microsoft is not likely to publicly list which specific patents it believes are infringed upon by open source software. "We're not going to have a discussion publicly with that level of detail," he said.

It seems to me that it is just more noise from a blowhard company that is losing steam in the arena of operating systems. Sound and fury signifying nothing. Too bad the general public won't recognize it for what it is.

Re:If it could it would

[tjr]

If they aren't going to discuss it publicly, then who exactly are they going to discuss it with privately?

Re:If it could it would

[init100]

"We're not going to have a discussion publicly with that level of detail," he said.

This and other similar quotes were what turned on my FUD warning light. The fact that they don't want to be specific is quite telling. They just want a dark cloud to hang over Linux, so that people wouldn't look that way when they are disappointed by Microsoft's latest offering.

I know MS trolls and fanboys won't like this, but the fact remains: If Vista and Office 2007 were booming and replacing Linux and other F/OSS in the marketplace, why care about it at all? Why risk their in many circles very positive corporate image to FUD Linux and other F/OSS with patent threats? No, this probably means that the uptake of Microsoft's latest products is far below their expectations, almost to be considered a flop. Flops they spent many billions of dollars developing.

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

Linus nails it. Again.

[symbolset]

If they had patents that could kill linux, what would Microsoft do? Would they hem and haw and bluster about unspecified patents, or would they drop everything and file suit so they could get restraining orders against all the distributors of this "cancer"?

Microsoft's duty to their shareholders is to maximize value and exploit their IP. Of course they must choose the latter.

Therefore, they ain't got diddly or the blabbing would be done and the lawsuits begun.

Past infringement?

[KarmaMB84]

Assuming MS really does have valid patents, how could just rewriting the code prevent Microsoft from seeking royalties for past infringement? Why does Linus think that Microsoft can't have patented anything that might be in the Linux kernel now just because basic operating system theory was done in the 1960s? Surely Linux 2.6.x is more modern than 1960s technology, right?

Re:Past infringement?

[MightyMartian]

Software developers do not read patents.

And that's the saddest thing about software patents. I'll wager you won't find any non-trivial code that doesn't trample on some software patent. I doubt you could write anything over a few thousand lines long that wouldn't violate some software patent by somebody. If this continues too much longer, law schools will have to start turning out lawyers who can read C, C++, Java, C# and x86 assembly.

Re:Past infringement?

[nanosquid]

Assuming MS really does have valid patents, how could just rewriting the code prevent Microsoft from seeking royalties for past infringement?

Well, infringement wasn't willful and developers would address it quickly, so any compensation would be for damages. And it would be hard for Microsoft to claim significant damages since most Linux users also have Windows licenses (for now).

Surely Linux 2.6.x is more modern than 1960s technology, right?

Not by much. Neither is Windows for that matter. Sad but true.

First, they don't, and secondly they can't sue

[postbigbang]

Microsoft will shortly have to expose the patents they believe are violated. That will be their undoing.

If they sue, it will be against major distro makers that aren't otherwise indemnified (like Novell, it's believed). If they sue end users, they will rue the day, and it will become like the RIAA except that there'll be alternatives to software, where there is a monopoly on music distribution.

Who will suffer? Microsoft. They're already in trouble with sliding OS sales because they can't make a quality product because of decisions made more than a decade ago that are architectural in nature. Would a Linux user be sued? Hardly. A distro maker? Sure. And how much money are they going to get? Not very damn much-- that's the interesting part. It'll be like SCOx vs IBM all over again. Watch the smoke, watch the mirrors.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Cause of monopoly: Government granted monopoly

[openright]

If the government ever really wants to address Microsoft as a monopoly, they should realize that the underlying monopolies are granted by the government. The 95 year software publishing monopoly is granted by the government. The 20 year software design/algorithm monopoly is granted by the government. If these monopolies were reduced to reasonable terms, the tight control given to these large companies by these monopolies would be lessened.

Re:Cause of monopoly: Government granted monopoly

[zotz]

"If the government ever really wants to address Microsoft as a monopoly, they should realize that the underlying monopolies are granted by the government."

Bingo!

MOD parent up!

And government granted monopoly means that the Free Market cannot fix the problems. The government will have to do that.

all the best,

drew

Sue for FUD?

[eille-la]

Is it possible for an organization like IBM (who pay to keep the Linux kernel in development) to sue Microsoft because they spread misinformation on purpose about GNU/Linux which is bad for it's reputation?

I think it is possible to sue someone (at least in Canada) who act to make your reputation go dirty.

Is there a law for that?

Duty to Mitigate

[EricTheGreen]

I would be interested in comments from any lawyer-types on whether the duty to mitigate applies now that Microsoft has publicly announced knowledge of alleged patent violations. If they don't pursue specific action now, but defer it to some later time, could a defendant mount a defense based on Microsoft's failure to address the violation in a timely fashion? Or does this not apply in IP law?

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.

Let them show it

[WindBourne]

This is the same exercise that was done with SCO. In fact, MS was probably wanting to see a trial run at this, to know what pitfalls they were going to have. Now, they have an idea of what to avoid. SCO's big downfall was having the patents outed. Once that happened, the community went to work on it and has destroyed SCO.

Why not debunk it? Nothing to debunk until they play their cards. They are being told to show cards after a call, and they want more rounds of betting. That is normally a bluff.

hmmmm

[EvilPoster]

IANAL, but couldnt the statements that M$ employees made about Linux infringing XXX many patents be considered slander? This was obviously done to harm the reputation of Linux, and absolutely no information was given pertaining to the actual patents that Linux violates. Perhaps, it's a different word when this is said about a product rather than an individual, but it seems like damaging the rep of a 'competing' product (with no proof) would have legal ramifications. maybe not?

Re:hmmmm

[Husgaard]

IANAL, but couldnt the statements that M$ employees made about Linux infringing XXX many patents be considered slander?

IANAL either.

Judging from the SCO case (where the unspecified claims were based on copyright instead of patents) this is probably not possible in the US.

But most other countries take it very serious when a company tries to distort the market with such claims. In Germany a settlement after a temporary restraining order on Germany meant that SCO could no longer spread their lies in Germany.

Because the law is more protective of the free market in the EU, and because the EU already has it's eye on Microsoft for anti-competitive behaviour, Microsoft risks big trouble in the EU because of their unspecified claims.

Halloween memo rerun?

[stevedcc]

Wouldn't it be just great if there was a rerun of the Halloween memo, involving a list of 235 patents that linux allegedly involves, which suddenly "dropped" into an appropriate inbox?

Wishful thinking, I know. But it's happened before....

Class Action Lawsuit

[Anonymous Coward]

It's time for Linux contributors to start a class action (defamation) lawsuit. Given the number of contributors, I'd say we're looking at several billion in damages. Maybe then we'd see some details.

Needs to be said

[rossz]

I had hoped Linus would have said this, but I guess it's up to me:

Hey Microsoft! BRING IT ON, BITCH!

Accusation - substantiation = slander

[KFury]

If Microsoft publicly declares that Linux violates patents but won't disclose those patents it seems Microsoft would be guilty of slander. Clearly they're trying to make businesses think twice about buying into OSS solutions by giving the perception that those OSS solutions could be illegal.

Just raising the threat is enough to swing business into MS's camp. Without a single company to take point and sue MS for slander they'll get away with it.

Re:Accusation - substantiation = slander

[Dan Ost]

I'm sort of expecting to see RedHat file a Lanham Act suit against Microsoft the way they did against SCO.

Heck, they could use the SCO lawsuit as a template.

If anyone should be pissed...

[mindtrance]

it should be Xerox. Apple stole the GUI from them, and then Microsoft stole it from Apple.

That's actually an awesome idea

[John Miles]

Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.

With enough eyes, all patent violations are visible. Chances are, many large companies that hold patents that MS infringes upon don't even know the infringement is happening. If users were to discover and publicly document a few thousand tidbits such as, "Windows Vista's user-account control database clearly violates IBM's patent 1,559,664 of June 29, 1997," why, companies like IBM would almost be obliged to sue MS for damages.

I like this idea a lot. It's elegant as hell, because it takes advantage of the fact that Microsoft has more to lose than anyone from software patents.

you don't get it

[nanosquid]

They're not basing that notice on any actual legal risk, they're just happy that they have found a good excuse not to have to learn something other than Microsoft Word.

I got questions...

[Anonymous Coward]

I'm not familiar with the US legal system, but here goes...

1. Can't FOSS or some other Open Source-heavyweight counter-sue M$ for slander in the likely event their allegations can't hold water? We can't sue for lost profits (there isn't any), but instead propose some kind of gag restricting M@ from making likewise allegations again? I mean, lawyers like money, and this seems like stealing candy from a baby (who throws chairs).

2. Why doesn't FOSS-supporters construct websites touting all the patents M$ breaks, or patents that M$ claim as their own although prior art exists? It wouldn't be FUD, it would be stepping up to the table and unveil the shitty patent-practice M$ has. I mean, that's what patent-databases are there for, right?

3. In essence, wouldn't FOSS/The Open Source community be "the bus to get onto" for lawyers? It seems like an infinite generator of easy-to-win lawsuits waiting to happen because no-one steps up to the plate due to the de-centralization of open source. The lawyers would make money, the community would get M$ off their backs, everybody except M$ goes home glad.

IANAL, but gee, If Naomi can do community-service for flinging shit at her maid...

Re:I got questions...

[drcln]

I believe that making intentional misstatements asserting patent rights that the owner knows to be invalid for the purpose of wrongfully suppressing competition is a violation of antitrust laws. But, IANAATL, if you have a particular concern that Microsoft's FUD affects you, then you should see an antitrust lawyer.

Re:Why do their work for them?

[jmorris42]

> We'll have done their homework for them.

No, I think this idea has merit in a bigger sense. Think about it, post where I'm wrong if you see an error.

Ok, Microsoft threatens Linux/OSS with a patent fudbomb. Now the world is waiting for a response. But lets focus on the part of the world that matters here, large instituitional shareholders of Microsoft stock. If our response is to just start at the most recent patent on record and devalue it by documenting weaknesses (prior art, obviouslness, whatever) and showing every intention of moving backward until we hit the expired ones what sort of potential paper losses would that involve? Remember that they derive a non-trivial income by cross licensing that patent portfolio and the size of it reduces the cost they pay to license other companies patents. Directly attack that treasure chest and they would certainly feel pain. Even a credible threat of a concerted distributed attack on that valuable balance sheet line item would get the interest of the professional investors. Remember the one thing they dislike is uncertainty when assessing risk.

In summary it is one of the only ways we can demonstrate a counter attack that would do more than simply annoy them. Microsoft only understands force and the threat of it. They ruthlessly attack when they see weakness and deal when they encounter strength... and look for ways to undermine the foe and then attack.

Re GoodWay:Sad or Telling?

[OldHawk777]

Also, M$ is possibly seeking mutual indemnification from theft of property prosecution. If M$ can press the Linux Foundation and FSF-GPL+ to provide such a settlement, then they are safe from being financially raped, forced to release M$ products to F/LOSS-GPL, or destroyed by forcing removal of all OSS-GPL copyrights protected code from M$ products.

So, who will be the first to flinch in this obvious game of chicken/standoff. I suspect, that M$ is looking to be another dickless empty SCOrotum.

I ain't good enough with code, but I will continue to put some loss money on the Linux Foundation, FSF-GPL, EFF .... It is a very good idea to start loading the evidence weapon that will put a through&through hole in M$. I mean we may as well help them commit economic suicide. Work with the Linux Foundation folks ... I will be sending them a couple hundred more $ this year for the TEK-War. I hope I can get a hat that says I supported the F/LOSS troops in battle against the M$techno-fascist.

!HAVEFUN!

To sum it up.

[Orion Blastar]

"Hi, my name is Linus Torvalds, and I pronounce the 'Microsoft IP violations' in Linux as bullshit!"

Re:Why do their work for them?

[Phrogman]

I think this is an excellent idea, set up a wiki, start listing the patent details then start adding in listings for prior art etc. Sure, thats the /. community doing the prior art research etc, but who better? If we can't find prior art, then we are alerting the OSS community of something that needs to be changed to ensure MS has no valid claim. If we can, then we are lessening/weakening Microsoft's collective IP that they use to bash other companies over the head with. We are striking back.

It would take some work to get started, and you would want a lawyer or two involved to ensure that opinions are valid when it comes to the details, but its certainly doable and exactly the sort of thing that an army of geeks is quite capable of accomplishing.

If you truely hate software patents - or the current patent system - why not help set this up?

Re:Estoppel by Silence

[fishbowl]

"Fair enough. It's possible you are right. If, however, you want to be able to enforce those patents later, you'll need to com e forward right away."

There's nothing to support that notion for patents. For trademarks, yes. For patents, no. It's quite allowed to enforce a restriction of a patent for one party, and ignore another.

Estoppel enters into the mix if a party changes its claims in the course of litigation.

The doctrine you are looking for is Laches. Laches has been used as a defense against patent infringement, and appellate courts have delivered opposing findings. Compare Wanlass v. Fedders Corporation, 145 F.3rd 1461 (Fed. Cir., 1998) with Wanlass v. General Electric Company, 148 F.3rd 1334 (Federal Circuit, 1998).

In the latter case, the same court assigned blame on the plaintiff because not only had their delay caused undue evidentiary burdens on the defendant, but also because the defendant had long since ceased production of any infringing product.

The Fedders case establishes a duty on the part of the patent holder to police the market where suspected infringement occurs, but did not impose any penalty for failing to do so under the facts present in that particular case.

These separate findings were by the same court, a week apart, for the same plaintiff in very similar cases with substantially similar claims. They suggest that the application of laches to patent infringement claims remains subject to evaluation of all other facts of a given case.

As it stands, the best you can hope for in applying laches to a patent infringement suit, is that it may help a motion for summary judgment to be granted, and may be a bargaining chip to reduce a settlement amount.

But there is no basis to claim that delay in prosecuting a patent infringement has any assurance of diminishing the patent holder's right to seek damage in future litigation.

Re:I know Bill pays for some low Quality Shit ...

[The Bungi]

No, really, what are we supposed to do, sit on our hands while M$NBC, GE, Westinghouse, Disney, Fortune and other big media owners trumpet this bullshit? I don't think so.

I don't know, but I doubt you're supposed to be posting on Slashdot using technical terms like "shit" and lots of dollar signs to spell the names of companies. But hey, I'm sure free software is all better off thanks to you.