Microsoft: We're all 'mixed source' companies

In case you were wondering, Microsoft thinks the battle of open source vs. proprietary software is basically over.

"Today, but increasingly in the future, we are all going to be 'mixed source'," Microsoft's top intellectual property lawyer said in a lunchtime interview on Thursday. To bolster his claim, Horacio Gutierrez notes Microsoft is releasing plenty of stuff as open source, while open-source companies like Red Hat often license commercial software alongside their open-source products. "I actually think the war between proprietary and open source is a thing of the past," he said.

That doesn't mean Microsoft is ready to sing Kumbaya with Red Hat, or other companies that haven't made an IP deal with Redmond. While Microsoft is patient, Gutierrez indicated that Microsoft's patience is not unlimited.

"If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said.

Microsoft has, on a number of occasions, asserted that Linux violates a ton of Microsoft patents, but Microsoft has never sued a company over those claims.

Gutierrez said he would like to keep that record intact, noting that the Novell deal, in particular, is an example of how working with a rival can ultimately benefit both companies.

It's generally thought that if you want to kill a good technical discussion, just bring in the lawyers.

But Gutierrez notes that it's often the complete opposite. In fact, he credits Microsoft's stepped-up licensing efforts that began five years ago for having helped the company find a way to talk to rivals that it had shunned in the past.

"It is truly a business mechanism to start discussions that weren't possible before," he said.

He notes that before software patents were in widespread use, companies were reluctant to share any technical details, jealously guarding all their know-how as trade secrets--another form of intellectual property protection that largely requires information to be kept confidential.

Patents remain a double-edged sword for Microsoft, however. Gutierrez said the company is defending about 50 patent cases at the moment--half of all the company's litigation docket.

While some are high-profile cases such as the disputes with Alcatel-Lucent, most are with companies that don't actually make goods related to the patents they hold.

In an effort to help head off patent disputes, Microsoft is an investor in Nathan Myrhvold's patent-buying Intellectual Ventures effort and has also made deals with several other such patent companies. "We've done deals with a number of others," Gutierrez said.

On the positive side, though, are deals like the Novell one, Gutierrez said. In the end, Novell has grown its business, Microsoft got added revenue and customers end up with products that work better together. Gutierrez wouldn't name names, but he said to expect more deals along the lines of the ones Microsoft struck with Novell and Sun Microsystems.

"We have tasted the opportunity to put IP to work in a very constructive way that leads to better products and more satisfied customers," he said.