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May 14, 2007

Microsoft claims open source infringes 235 patents

Posted by David Hunter at 11:03 AM ET.

Microsoft CEO Steve Ballmer apparently so liked the hole he was digging with his vague dyspeptic grumblings about Linux infringement on Microsoft patents that he called on the Microsoft legal department to dig the hole deeper as Fortune reported over the weekend. The new chief ditch diggers are Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez who are claiming that 235 Microsoft patents are infringed by open source products:

In an interview with Fortune, Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.

Having fallen into this pit, the next step is inevitably to reveal which 235 patents are being infringed although Microsoft seems to be a bit coy about that (from the Fortune article):

Gutierrez refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.

The opens source crowd is already rubbing their hands at the prospect. Due to the nature of the patent system which relies on challenge and litigation for clarification and the vagueness of many software patents, I’m sure Microsoft can make a more credible case than the laughable performance by SCO in their Linux copyright lawsuit against IBM, but they run a substantial risk as well.

The real question though is where Microsoft thinks they are going with this. Steve Ballmer’s Big Ditch may be a useful marketing bullet, but I find it hard to believe that Microsoft is going to sue any major customers for using open source programs, because they are almost certainly major Microsoft customers as well. Microsoft could always find some little businesses to pick on, but the publicity from that would be really ugly. About the only thing left is to sue open source software distributors, but now we’re talking a variety of deep pocket companies like IBM, Dell, Sun Microsystems, Hewlett-Packard, Motorola and Oracle who are as equally adept as Microsoft in prosecuting and defending patent lawsuits:

So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN [Open Invention Network of major companies backing open source] might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It’s a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon – an unending series of suits and countersuits that would hobble the industry and its customers.

Now that would certainly be exciting! I’m chalking this all up to Microsoft marketing FUD unless the Microsoft executive suite has collectively taken leave of their senses.

Filed under Coopetition, Executives, General Business, Linux, Marketing, Microsoft, Open Source,, Patent Lawsuits, Patents, Steve Ballmer

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3 Responses to “Microsoft claims open source infringes 235 patents”

  1. Microsoft cross-licenses patents with LG Electronics -- Microsoft News Tracker Says:

    [...] In recent months Microsoft has signed cross-license agreements with a number of large hardware electronics firms like Samsung and Seiko-Epson and today announced another with LG Electronics, the Korean electronics giant. This standard practice for larger corporations, but there is a novel aspect in view of Microsoft’s recent grumblings about Linux patent infringement:  LGE will be making ongoing payments to Microsoft for the value of Microsoft patents as they relate to Linux-based embedded devices that LGE produces. [...]

  2. Linspire drinks the Microsoft patent Kool-Aid -- Microsoft News Tracker Says:

    [...] Whatever those are and however irrelevant they might actually be. This covenant is apparently also an extra charge option for Linspire customers. Linspire CEO Kevin Carmony says the agreement is really business as usual for Linspire and he doesn’t mind taking the hits from the open source community. Probably not, as he has been taking those hits already. [...]

  3. Microsoft says GPL v3 does not apply to them -- Microsoft News Tracker Says:

    [...] This will undoubtedly provide argument fodder for months to come, but as usual with patents it all comes down to who wants to sue so the real question is whether the FSF and its supporters care to make an issue of Microsoft’s stance or Microsoft tries to enforce those 235 patents they claim are infringed by open source products. Filed under Coopetition, Open Source, Patents, Linux, Novell, Microsoft, Patent Lawsuits, Xandros [...]

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