Microsoft Will Not Sue Over Linux Patents

San Muel writes "In an official statement, Microsoft has said it has no immediate plans to sue after alleging patent infringements by open-source vendors for the time being. The company goes on to say that, essentially, it could have done that any time in the last three years if it wanted to. So what's the purpose of these bold announcements? '[John McCreesh, OpenOffice.org marketing project lead] added that while Microsoft may not have plans to sue, it could be using the threat of litigation to try to encourage corporate customers to move to those open-source product vendors with whom it had signed licensing agreements, such as Novell. "Microsoft has spent time and money accumulating patents. Maybe it has started using that armory to move corporate customers to open-source software that Microsoft approves of."'"

Comments

Open Letter to Brad Smith

[morgan_greywolf]

Dear Brad Smith,

Sue us! C'mon, Brad. That's right. Put it all out there! You tried and failed with your feeble little pawn, SCO. Then the big bad judge ordered them to show the code! Oh my, got called on your bluff, eh?

Now you're too afraid to sue because you think the same thing will happen to you. C'mon, Brad, go ahead? What are you -- chicken?

Because then you'll have to show us the code, and your bluff will called and it will be all over. That's why you're not going to sue, you spineless twit.

Thanks,

Rob Shinn
An Open Source developer.

Re:Open Letter to Brad Smith

[aegisalpha]

The real shame is that the ones these statements are designed to influence probably don't know that much about OSS, SCO, or anything else that would clue them in to the FUD. That's the problem with open letters, unless published in the right place you won't reach your intended audience.

So who wants to buy a full page ad in a trade magazine or national newspaper?

Re:Open Letter to Brad Smith

[jimstapleton]

Also, another logic that probably scares them - MS's legal department probably is well aware that OSS groups are much more likely to play the prior-art/patent-invalidation card than other groups.

Boring

[cerberusss]

*yawn* This is getting boring. The minute uncle Bill comes up with some stupid supposed violation, we'll code around it. In the meantime, let's not pay attention to this craphola.

Re:Boring

[Aim Here]

Err, Microsoft got a big pile of FUD around these supposed patent breaches. Maybe some CEOs and IT procurement people believed them and maybe it affected their buying decisions. That's bad.

Now when we've got them to make a humiliating climbdown, you want us to shut up?

I say we scream this headline all the way to Bangalore and back, just so everyone gets the message that the patent threat was a pile of worthless hot air all along...

Corporate Intimidation Tactic

[Apple Acolyte]

M$ shakes its fist at Linux and cries infringement but says it's not going to sue. So why did it make the announcement in the first place? It's a corporate intimidation play. M$ wants to convince enterprise that Linux is somehow evil and illegitimate because it knows it doesn't have the goods to shut Linux down, nor can it buy Linux out. The only alternative for a sleazy corporation like M$, which is propped up almost exclusively by inertia, is to defame the competition. I hope most will be savvy enough to see through this transparently evil act.

Legality

[Falesh]

At what point does this become illegal? Are you allowed to threaten whoever you like to strong arm customers into buying your product?

There should be a way to make MS go to court or lose the right to sue.

Re:Legality

[rucs_hack]

Unless they actually do something libellous in their campaign there's not a whole lot we can do about it.

However their threats are empty, and only likely to sway companies still entrenched in the 'threaten to use open source to secure discounts' camp.

The big problem for Microsoft is that they are no longer the big player they once were. They know this, and this is an ill judged attempt to say they are still in charge. It's only to be expected.

Unfortunately words don't mean much when money is at stake, even their most devout customers will start to become edgy if they see competition moving to open source solutions and saving money. There is no loyalty where money is concerned.

Re:Legality

[Bill Barth]

Is there perhaps a case (say brought by RedHat or another non-Novell Linux distributor) for tortious interference? I.e. if RedHat can show that one big deal fell through because of MS's psuedo-threat, haven't they had their business relationships interfered with in an illegitimate way?

You see I have this big bat?

[monkeyboythom]

I could have used it upside your head but I choose not to at this moment. But I could.

This is worse than FUD, it's an outright threat. By simply announcing you could sue, challenges large business into accepting risk. To the person in the trenches, they know Microsoft's got nothing. However to the CEO and the CIO, the same people who move a company forward, this is a challenge to their capital expense planning. They see the threat of lawsuit and immedietely classifiy that as risk.

How to mitigate it? Unfortunately you don't. Because it is the idea of lawsuit you cannot work around this risk unless you avoid it altogether. And this is what Microsoft is banking on. And by avoiding Linux for this year and next in capital planning, you avoid implementation of Linux in a corporate environment for at least three years. And by that time, Microsoft is betting that you will have spent so much T&E in their shop that it would be very expensive and time consuming to leave.

Actually..

[Anonymous Coward]

isn't it legally questionable to "not sue yet" if you have a patent on the technology and you know that the patented technology is widely used in the market? You're actively letting people use and enjoy your patented technologies so that there would be more users when you finally sue. Sounds a lot like "entrapment". I think they should at least forbid people from using them, preferably by telling what exactly they are using. Companies usually sit quietly on their technologies and come out with a bang when they suddenly surface their submarine patents. You don't see many of them brewing FUD on the news.

Re:Actually..

[Russ Nelson]

Laches

Microsoft will lose the right to sue ... ever

[Anonymous Coward]

If you find that your patent has been violated, you have to sue in a timely manner. You can't wait or the court will pitch out your case because of the doctrine of laches. I suppose someone should ask them how they intend to get around that problem.

http://en.wikipedia.org/wiki/Laches_(equity)

"Laches is an equitable defense, or doctrine, in an action at law. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one's rights in a timely manner can result in claims being barred by laches. Laches is a form of estoppel for delay. In Latin,

        Vigilantibus non dormientibus æquitas subvenit.
        Equity aids the vigilant, not the negligent (that is, those who sleep on their rights). "

Re:Microsoft will lose the right to sue ... ever

[Artifakt]

First, I am not a lawyer. This is not legal advice, and should not be considered as the basis for any legal proceeding. This is abstract speculation on a point of law, and is offered only in the hope that it will inspire any persons who may face related litigation to study the relevant issues and seek professional legal advice as needed.

1. The Wiki you linked to does mention in how some cases, such as contesting an election, a very short period of time, mere days, is enough to invoke the doctrine, so I see where you get the idea timely means something less than a year, or even a quarter. The normal period is more like six years as doctrine. The big court cases specifically involving patents show up better if you search for 'submarine patents' instead of 'laches', and you may want to look at the time frames of the most significant cases there, as they are typically a lot more than the six year period, and many of them are more than the whole current 20 year life of a patent. Microsoft could probably wait 2 or 3 years and still be within the normal period that is considered timely. The could even justify this by claiming the allowed some time for lesser remedies such as negotiation to work if they could.

2. One principle behind laches is that the delay may be used to increase damages and make the resulting lawsuit more profitable, (usually because the defendant has presumably made more profit in the meantime). So what happens if a company waits a while to sue, but in its complaint sues only for an amount it claims reflects damages incurred before the date it first contacted the defendant, and waives additional damages subsequent to that date? You'll note my sig - I don't have a good answer to that question, but I think it may be a potential way to defuse a defense claim. Laches is an affirmative defense, requiring both assertion and proof by the defendant. A single affirmative defense doesn't usually lead to a whole case being thrown out with prejudice or anything on that order - more often it just limits the case's scope. (OTOH, if Microsoft doesn't have much of a complaint, it shouldn't take much to get the whole thing dismissed.)

Re:Microsoft will lose the right to sue ... ever

[debrain]

If you find that your patent has been violated, you have to sue in a timely manner. You can't wait or the court will pitch out your case because of the doctrine of laches. I suppose someone should ask them how they intend to get around that problem.

Laches need not apply, for the following reasons (off the top of my head).

First and generally, statutes (legislation) trump common law (judge-made law). Laches is common law doctrine, patents are statutorily enacted. The period for execution of patent rights falls within a statutory declaration of, I believe, 20 years. The Court is not likely to have the power to supplant the statutory rights granted to the patent holder because of a delay. If patents were meant to have a timeliness to prosecution component, that ought to have been something considered by the legislature (Courts are inclined to presume competence of the legislature), and its absence may be deemed intentional.

Second but generally as well, equity trumps law only where the law is unduly harsh. Patents are a legal concept whose temporal restrictions have been well reasoned by the legislation and long considered by the judiciary. As commercial negotiations regularly involve sitting on ones' right to sue, it is nigh impossible that equitable doctrines would come into play. It does not squelch the right to assert the proprietary protections vested by statute.

The concept of estoppel may apply. Where one reasonably relies upon the statements of another to their own detriment, they may have an equitable remedy. Thus, if a commercial entity relies upon Microsoft's declaration not to sue in the immediate future, Microsoft may be barred from recovering at law because the commercial entity relied upon Microsoft's statements.

That being said, Microsoft has limited the scope of its statement to "immediate future", therefore any prolonged infringement would not be protected by such mechanisms. Microsoft need only bring a few demand letters to discontinue infringement, and the defense of estoppel is waylaid.

Thus, laches is unlikely to apply, however estoppel may, but only for the quasi-timeframe Microsoft cited of the immediate future. YMMV & HTH. :)

Play the game our way...

[AVee]

They are trying to move OS companies into a direction where they have to play the whole IP game. They won't kill open-source, but they can try to make money out of it. And that just what they are doing right now.
What they are saying is that they really honestly don't mind when we are using Linux. And it's true, it even is smart.

Just look at it, Dell customers get to use Linux but still pay their share of MS tax, but now for an OS Microsoft doesn't need to develop or support.
You thought having 99.9% marketshare is the ultimate way to make money? Think again.

So MS wants to protect us by selling us insurance.

[Door in Cart]

"That sure is a nice operating system you've got there. Sure would be a shame if something bad happened to it."

Racketeering?

[gabrieltss]

M$ pounds their chest saying Linux is infringing. Then they go after enterprise customers asking them to pay for protection against litigation. Then they say they won't sue (????).

I think this is called "Racketeering" isn't it. Like the mob asking businesses to pay for protection money so "nothing happens to them". I think this just crossed M$ over line in to illigal actions here.

If you work for a company M$ has approached with one of these offers I -encourage you- to ask your company to call M$'s bluff - and tell them you consider this move an illigal one and that your company will be contacting the States Attorney Genral. If enough companies do this it might scare the living hell out of M$. But first and formost - actually contact the States Attorney General - don't threaten to do it - DO IT!
  Heck maybe not just companies should do this but individuals as well. I think there are enough links to statements by M$ that the States Attonrney General's could have something to go on - right?

Re:Racketeering?

[Control Group]

No, it isn't racketeering. This, though similar to, is not a protection scam.

"Boy, this sure is a nice store. Be a shame if something happened to it, wouldn't it?"

Is a protection scam. The threat is of performing an illegal act - breaking the windows, trashing the place, burning it down, or what have you. All of those things are themselves illegal.

While what MS is doing is similar in result (they hope), it is in content much the same as the DA offering a lighter sentence for witness cooperation. It's "we could prosecute, but we won't if you cooperate." This is - obviously - not illegal. It's the same thing as all the megacorp patent cross-licensing that goes on.

Which is itself indicative of how crap the system as a whole is, and this is perfect evidence of why we need patent reform yesterday. But waving the bloody shirt and calling it racketeering doesn't help anything.

Re:M$ doesn't *need* to sue...

[LWATCDR]

The threat of a law suit from a convicted monopoly is enough for a new round of anti-trust investigation.
Let's see.
Microsoft says.
1. Open Source projects are violating our patents.
2. We will not sue over these patents.
3. We will not tell you what patents they are violating.
4. You should give us money so we will continue to not sue you.

Ever wonder where MS got the number.

[supersnail]

Here

What the researcher is saying is the with 235 potential patent violations
Linux scores lower then most proprietary software he has looked at.

Incidently nowhere does he say who owns the 235 patents so given the amount of
Operating System related patents filed they are more likly to belong to IBM or HP
(DEC VAX, Tandem Non Stop etc. etc. ) than microsoft.

Pure FUD!

Microsoft just lost shitoads of patents

[Khyber]

"We can sue you, could ave done so for three years now, but we won't, just to leave you scared" is what I get from reading that article. I say Microsoft needs to be sued under the RICO act, because that's almost exactly how the Mafia works.

The threat is worse than the suit

[The Monster]

The threat of a suit at some unspecified time in the future is a classic FUD tactic, crafted to stimulate the Herd Mentality Nexus in a PHB's brain. (This is the source of the "Nobody ever got fired for buying MS." maxim.) They then contact the guys in Legal, who either don't know Jack Schidt about patent law, in which case they advise steering clear of the minefield, or know it well enough to realize that patents are a fustercluck, in which case they advise steering clear of the minefield.

An actual suit could result in MS having some or all those patents thrown out, at which point they are no longer able to affect a PHB-HMN.

"No immediate plans to sue"

[DragonWriter]

Sounds like it may be an attempt to weaken the grounds (reasonable apprehension of suit) for supposed "violators" to file for a declaratory judgement, while keeping the "we could sue somebody someday" FUD alive to scare enterprises away from Linux.

Patents

[SnarfQuest]

Why can't someone scan through the MicroSoft patents, and look for obvious, prior art, etc. type of things. Then send a note to the patent office reporting their findings. Being helpful government officials, I'm sure they will handle things properly.

Once these patents are gone, we can then ask Microsoft to revise their count, so that we can see how much work is necessary for the next round of patent reversions.

I am not a patent lawyer, but shouldn't there be some simple way to tell the patent office that they aren't doing their job of vetting patents properly? Shouldn't MicroSoft be slapped properly for submitting so many invalid patents?

Related Link

[fatalfury]

Groklaw has an interesting writeup about this situation, with insightful quotations from Eben Moglen on the Microsoft/Novell agreement. Here's a brief excerpt:

The business model of threatening to sue people works if the people are 12-year-olds. It does not work real well if they are the pillars of finance capitalism. So as a party engaged in annual "be very afraid" tours, you're going to start to get pushback by enterprise customers who say, "That's *us* you're threatening."

Now what if you could reduce their sense of being the people who are made afraid? What if you could find a way to give them quiet and peace -- and make a little money on the side -- so that the only people who are left quaking when you did your annual "Be Very Afraid" tour were the developers themselves? Now you would have given yourself a major ecological boost in swinging your patents around and threatening to hurt people.

Deals for patent safety create the possibility of that risk to my clients, the development community. If enterprise thinks that it can go and buy the software my clients make from some party who gives them peace from the adversary in return for purchasing a license from them, then enterprises may think they have made a separate peace, and if they open the business section one morning and it says "Adversary Makes Trouble for Free Software", they can think, "Not my problem. I bought the such-and-such distribution, and I'm OK."

This process of attempting to segregate the enterprise customers, whose insistence on their rights will stop the threatening, from the developers, who are at the end the real object of the threat, is what is wrong with the deals.