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Torvalds Says Microsoft is Bluffing on Patents
An anonymous reader writes "Microsoft's aggressive defense of its intellectual property, which includes claims that Linux violates a number of its patents, is nothing more than "a marketing thing," according to Linus Torvalds, creator of the Linux kernel. "They have been sued for patents by other people, but I don't think they've — not that I've gone through any huge amount of law cases — but I don't think they've generally used patents as a weapon," Torvalds said. "But they're perfectly happy to use anything at all as fear, uncertainty and doubt in the marketplace, and patents is just one thing where they say, 'Hey, isn't this convenient? We can use this as a PR force.'""
Linus writes kernels- actually, a single kernel. He does not write text books, news articles, or legal documents. His guess is as good as yours or mine as to what Microsoft's intentions are.
Wait, scratch that. Mine is better- I am not an engineer.
The patents involve Xenix. Look it up sometime, it may seem oddly familiar.
However, I believe he's right in saying linux is not in any danger. It isn't- the only companies that might get pricked by these patents are commercial enterprises who are profiteering off of peoples' open source work. (see: the companies that Microsoft has signed patent treaties with)
Can't one of the many Linux organisations try and get a legal injunction barring Microsoft from claiming patents in Linux? A sort of defamation lawsuit?
This whole MS-patent crap is going to keep lingering over Linux' head, and MS is happy to leave it at that. If Linux community wants to get rid of it, they are the ones that have to take action.
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However, they do not operate in a vacuum. Linux adoption is already way higher in Europe than the USA. Europe has been a bigger market than the USA for some time now (sorry if that bruises egos, but it's true). If microsoft too-aggressively attacks linux, the already-somewhat-frosty climate towards software patents in europe gets much worse, there's even more clear+present evidence for the likes of the FFII, FSF Europe and the european green and pirate parties to use to push for patent system reform or outright abolition. Personally, I think all techies I know in microsoft would welcome the abolition of patents, but the suits are another matter, and the techies aren't in charge in microsoft (microsoft would probably have disappeared a long time ago if they were, of course).
The way patents work in much of the business world is that big companies cross-license their patent portfolios, essentially promising not to sue each other for all the moronic patents each other holds (I'm oversimplifying a little, but you get the idea). This is pretty effective for them.
I wonder if open-source should look into the same thing.
Even lacking a cross-licensing agreement, the fact that EFF would have a portfolio of moronic patents to smack people back with might give companies trying to sue open source pause, because they would know a big counter-suit was coming.
It would take the teeth out of MS's patent claims. The only companies this doesn't work against are patent trolls.
Obviously, the licensing on the patents should be such that they are freely available for use unless a company sues an open source product. Perhaps patents are not licensable in this way, but a far as I can tell, you can license stuff in any crazy way you want, just about.
Yes, patents are evil, but until they go away, open source would do well to be able to wield the same weapon as everybody else. Obviously, open source would need somebody with deep pockets to file the patents, but I think it's worth pursuing.
Who is RTFM and when will he help me with Unix?
Microsoft's corporate leadership used to speak out against patents. This was when they were getting sued, and patents were a ticking bomb in their "embrace, extend, extinguish" tactics. Patents kept them from being able to "borrow" from successful innovators to improve their product line with impunity.
So, after a few losses, they took to using their capital reserves to purchase such companies outright while they were small, as their success and huge capital reserves made them a lawsuit target. This was a necessary change in policy that came with the success of having all that captial to poach. It's why their getting rid of some of that capital: It exposes them to larger judgments.
Those days are over. Linus would be right in the 90's, but no longer.
Now Microsoft is in a bunker mentality, using patents to defend a near monopoly in market share. They have completely changed their tune, because what they now need to do is slow down inevitable attrition of that market share. In much of their market, there is no where else to go, and no way to grow revenue except by raising prices. Witness the pricing on Windows Vista.
Don't think for a second that they won't sue. They've already got expert patent firms on retainer from defending themselves. Certainly, they started the ball rolling with SCO, but that was just testing the waters. They will pursue this to their greatest possible advantage, regardless of whether the claims are reasonable, because they're already paying the lawyers.
If you consider a multi-million dollar lawsuit for marketing purposes "just marketing," then you've never defended yourself in a court of law.
Linus is wrong. He's thinking about the "hungry" Microsoft of the 90's. We're in the chair chucking, f-ing burying, Ballmer days now, and Microsoft is no longer an upstart. They run the desktop software industry, like the mafia ran Chicago. There's no reason, save the massive loss of judicial mind-share in various anti-trust cases, that they can't pursue legal options regarding their rapidly growing patent portfolio. Microsoft is, among other things, becoming a patent troll, and there's no reason to believe that they can't buy something actionable, if they don't already have it.
SCO was just an unsuccessful test case. Look out.
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Toro
The SCO case was intelligence gathering. I don't believe SCO ever intended to win that case. They just wanted the legal discovery. If you want to find exhaustive information about a company's IP profile, the best way to do so is to sue them in a broad IP case. Breaking into their headquarters is risky and stupid.
Why else do you suppose Novell paid their indemnification money so quickly?
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Toro
Yes, Linux is playing captain Obvious here for most of the /. crowd. However the story will hopefully be picked up by a few more mainstream outlets where it will help counterbalance the FUD a little. I expect that this is the point, it wasn't meant to get people in the LUGs talking.
As posters below rightfully point out, IBM wouldn't be neck deep in Linux if it was that encumbered.
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And then there was the Doctrine of Laches and US Patent Law. Microsoft may not be able to file suit because they've announced that they know about the infringement but haven't revealed what it is. IIRC, patent law requires the party that knows about the infringement to disclose it in good faith so the infringing party can attempt to work around it.
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It's not Microsoft, it's barmy Ballmer who keeps sounding off about patents. He needs to chill.
There are patents Microsoft has which Linux may infringe on, but if tested many of these will be written off as prior art and if Microsoft has extracted money from others over these patents then the would have to return the money.
I don't think it's possible to write an OS without infringing on patents. There's a difference between coincidences and blatant copying.