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Through the Patent Looking Glass with Microsoft
Andy Updegrove writes "By now you've probably read more than you want to about Microsoft's announcement that it owns 235 patents underlying leading open source software, including many opinions about whether Microsoft's new assertions do, or don't, represent a real threat to Linux, OpenOffice, and other OSS. To get to the bottom of the issue, though, you have to take a deep dive into how patent cross licensing works these days. When you do, you realize that patents don't mean what they used to, and have far more defensive than offensive value in the marketplace today. It also becomes apparent that it really doesn't matter whether Microsoft has valid patents or not, because so many other companies do as well. Today, what companies worry about isn't asserting their patents against other companies, but maintaining their freedom of activity. In this case, the open source community can simply ride the coattails of the major vendors, because Microsoft doesn't hold enough cards to win the hand, much less the game." Relatedly The Register is reporting that the author of the main report being used by Microsoft to support their patent claims has come out against Microsoft's interpretation of his work and Jonathan Schwartz gives some free advice to the overly litigious.
Back in November 2004, Dan Ravicher complained to Steven Vaughan-Nichols that Ballmer had misread his patent study, so I'm not sure that this is 'new' news.
That Register link is dead (although even Google News indexed the article. wtf?) But many articles are repeating Ravicher's old remarks: Ravicher says his report proves the opposite of Microsoft's claims, The author of that report disowned Ballmer's remarks, etc.
you had me at #!
The resounding reply from all corners has been either 'so?' or 'They have nothing, and won't have or they would have already shown it'. What's more, Linus more or less dismissed the claims as nothing more than FUD. There are claims that this FUD is being used to help bolster MS's Q2 sales of Vista.
Nothing but conjecture abounds as MS is doing a SCO and not saying what they have, nor why they want to even mention it. Yet others claim that the Linux vouchers MS is touting actually makes them a Linux distributor and thus subject to the GPL.
The whole thing should pan out to be a very interesting chapter in tech history.
Someone let me know when there is real news on this topic
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"Today, what companies worry about isn't asserting their patents against other companies, but maintaining their freedom of activity."
Last year IBM sued Amazon over IBM patents and it had nothing to do with "maintaining freedom". The whole theory of defensive patents is just an excuse for patent-mongers like IBM to continue to restrict competition.
From the main article, "have far more defensive than offensive value in the marketplace today" and from the parent post "MS. They are not used to being in competition"
Microsoft could well be using this "patent news" in a very underhanded, but very tactical way to scare corporations away from adopting open source tools and/or OS, in an attempt to tip the balance so corporations buy Vista. Non-technical Corporation bosses would be afraid of this kind of underhanded sabre rattling tactic of Microsoft, as they would fear wasting time and effort on Linux and so go the "safe" route of using Microsoft tools & OS. ("Safe"=What M$ tell them is safe).
Its blatant scare tactics hidden behind a supposed news story, which Microsoft's own PR departments created the news story.
There are 10 kinds of people in the world... those who understand binary and those who don't.
"there is almost no difference between this "everyone has defensive patents" world, and the "no one has any patents at all" world. In both cases, companies that hold a bunch of patents are free to operate as they see fit"
See the important difference. It's the *thousands of companies who don't hold a bunch of patents. They are not free to operate as they see fit in the former case, and in fact live in a Damoclean situation where their continued survival is dependent on being below the radar of the patent oligarchy. In the latter case, they are free to operate as they see fit.
Or did you have some plan for providing these defensive patents to "everyone"?
My turnips listen for the soft cry of your love
After digesting this issue for a couple days I have come up with this...
Intentionally or not, Microsoft has trained corporate America to wait until the first service pack or two before adopting their new operating systems. The new hardware specs for Vista will provide a further incentive for companies to delay the 'upgrade.'
Microsoft has come up with a short-term pump-up for Vista that was briefly referenced in another thread here and was supported by a friend of mine who is in CS @ a local university... students recieving free installs are being run through an e-commerce application with the price fields zeroed... which means they are being counted as sales. I wonder how many other individuals are recieving free licenses through this method for corporate evaluation etc...
Microsoft then releases public attacks to slow corporate adoption of competing products. In 9-12 months the market will naturally have reduced the overhead for upgrading to Vista and Microsoft will have time to release some major patches.
Profit!!!
Vista is not the only product they are using delaying tactics with. In 4th Qtr '06 MS dropped Virtual Machine licenses from $499 for corporate to $99 after announcing the delay of Viridian, their new upgrade.
Sad thing is... these tactics will probably work. Good thing is Microsoft does not appear to have a winning legal strategy. Not that they need one, but we probably won't be seeing C&D notices out of this.
I hope this is all that's behind this.
Regards.
This is simply good marketing coupled with an opportunity when OSS is finally in a position where real money is finally being made. I've worked in semiconductors for over 30 years. In that business if you start a new company, if you are not a direct threat to the big guys....they all just simply sit back and wait until you are finally making some money. Once that happens the lawyers from Intel, TI, IBM, etc., etc. etc. all line up at your door. They come in and say "Gee, we think you are violating our patents. Tell you what, we've decided the stack you violate is 8' high. Now, we can litigate each one...............or for today only, we will offer you this screaming deal of 30K/inch plus a royalty of 0.05% on every product you make........hell, we will even throw in a set of Ginsu Knives with the deal cause we are such nice guys!"
The have enough clout in the marketplace to make you look bad with their FUD. They can shut you down. This is simply legal extortion plain and simple. Tony Soprano would be proud.
"TV, a medium as it is neither rare nor well done." Ernie Kovacs
There is no such thing as a defensive patent; that just does not make any sense at all. The whole point of a patent is offensive; it is a restriction placed upon the rest of humanity that they may not do something. It does not matter whether anybody gets sued, the mere existence of the patent has already done the most harm. Suing someone is just looting the body after you've already killed them.
And it is not just a software-only issue, patents are just as dangerous in many other fields. For a much deeper understanding of how patents are harmful, please read Against Intellectual Monopoly by by Michele Boldrin and David K. Levine. http://www.dklevine.com/general/intellectual/again stnew.htm
This is quite a long read, but it is very important.
Looking at the timing, a couple of countries recently announced a push for open standards and open software for government use. Then there is the wide adoption of OSS in some coutries like India, China, ... Huge huge threat to M$ short term strategy. I think their long term plan is to embrace and extend OSS though.
Now, defensive patenting is a valid strategy for companies but doesn't work against trolls. You can't tell a troll that they are infringing your patent (except in rare cases). Having your own patents is kinda like having a gun in your pocket. Everyone with guns tries to be polite to other people with guns. There is occasional shooting. The unarmed regularly get robbed, raped, and beaten.
Regardless, M$ isn't really trolling. I do think they are throwing FUD backed by the threat of an RIAA style witch hunt. Easy enough:
1. Hang dongles on some web sites to catch unwary linux users.
2. Trace the ip_addr
3. ??!!!
4. Profit!!!
The problem they'll face is that some of us evil lawyers will happily attack their patents. Look what happened to SCO. The community really got engaged and gave lots of valuable information and insight. That gives the OSS side a huge advantage. The discovery phase of a case is often where the biggest bills are generated. In an OSS patent infringement action, the defendant simply hands over the code. The plaintiff, however, has thousands of pissed of people dredging up prior art and other ways to invalidate the asserted patents. A few hours effort from thousands of people translates into millions of legal fee dollars that the OSS defendant gets for free. Then a bunch of that gets handed to the plaintiff who spends millions trying to understand/rebut it.
On the other hand, the community has done a horrible job finding a way to get rid of the one click patent.
So, can M$ profitably sue? Yes, they can. They'll sue someone random and make lots of noise about it. Regardless of what the OSS community does, the bulk of the market will be frightened away from "risky" software. A few million is less than a percent of what M$ takes in.
Cool, the lawyers get rich.
I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense.
Everything that can be invented has been invented.
Charles H. Duell, Commissioner, U.S. patent office, 1899
Edit: Everything that can be invented infringes on a existing patient, 2007
That which is seen is temporary, that which is unseen is eternal, therefore, focus on the unseen things.
We all know how broken the current patent system is, especially the 'software patent' evil. Can we use wiki-like system to undermine it? Create a wiki for everybody to record something new, no matter how small/useless it might look like, and dedicate it to public domain. With properly managed time stamps, it can be a collection of all 'prior art'. (It's just like doing something oppsite to wikipedia, which stresses so much on unoriginality.)
This Microsoft FUD campaign really needs to be challenged, IMHO. I am an attorney, and I don't think that Microsoft has valid patent claims against me personally, and I am using Edgy Ubuntu and Mepis 6.5 and SuSE 10.0 and SuSE 10.2. The Mepis 6.5 SuSE 10.2 I am using in my law practice; and the Edgy and SuSE 10.0 I am using to make a film about Microsoft's anticipated loss of market share due to the growing popularity of FOSS. The film is called the Digital Tipping Point, so you would think that if Microsoft has a desire to shut up anyone, I would be among them. At any rate, I have created a list of people who would like to be sued by Microsoft. Please feel free to sign up. The more the merrier! It's a wiki page. Here is the tinyURL:
l e=Sue_me_first%2C_Microsoft
http://tinyurl.com/2wlemy
Here is the full page:
http://digitaltippingpoint.com/wiki/index.php?tit
So, in that context, there is almost no difference between this "everyone has defensive patents" world, and the "no one has any patents at all" world
There's a huge difference.
Existing companies with big portfolios and cross licensing agreements have a nice oligopoly, whereas new entrants have a really hard time to enter the market.