How much is Microsoft's patent protection worth?

I was reading Dave Rosenberg's commentary on Novell's patent deal with Microsoft and got to thinking about how much "protection" there actually is in the relationship. Novell has been selling this protection hard to its Suse prospects ("Linux is scary because Microsoft might sue. But we have a deal with Microsoft..."). Extortion? Sure. But for some it seems that integrity has a price.

For those who can't be bought, just how much protection are you missing? Not very much, it seems to me, and to a range of open-source legal experts I e-mailed to solicit their opinions.

I asked them to weigh in on the matter. Here's what I heard.

Given that Linux is Linux is Linux, in many ways (a phrase I first heard Ian Murdock of Debian fame use back in 2002), I initially thought that a suit against Ubuntu/Canonical, for example, would be tantamount to a suit against Suse. But it's not, as Microsoft would not be legally bound to do the coherent thing, which would be to sue every Linux distributor that was alleged to violate its patents.

It is, of course, tantamount to a suit against all Linux distributions, however, in the sense that if Microsoft were to sue an Ubuntu user for patent infringement (and Canonical then stepped into its customer's shoes to indemnify/defend against the infringement claim) based on Linux Module X--the same module that appears in Suse Linux Enterprise Server--then the community would still pick up on the silliness/incongruity of the suit.

In sum, while there would be no legal requirement for Microsoft to sue every alleged infringer/distributor of Module X, you can bet it would have a fierce public relations battle to manage. I suspect it would lose this battle with the community. Badly.

Novell, for its part, would then be in a very ugly position--which master does it serve? Microsoft or the open-source community? I think Novell would then realize its future is with the community, not Microsoft. Microsoft won't pay its bills forever, even though it's paying them now. Novell is a good company with good people throughout--it would do the right thing.

All of which means that a lawsuit is in no one's interests. Not Microsoft's. Not Novell's. Not the community's.

But let's say Microsoft were fool enough to sue, and let's continue to use Ubuntu/Canonical as the defendant (hereafter "Ubuntu"). In many contexts, if you sue me for X, Y, or Z, I can bring another party into the suit through a third-party claim. Perhaps I cross claim arguing that but for Company X's negligent representation of the pedigree of its code, I never would have licensed it (thus making Company X beholden to me if I'm found to be beholden to the original litigant).

Not so--or likely not--in the case of Microsoft versus Ubuntu. Even if a Novell employee actually wrote the allegedly infringing code in question (in Module X). Why? Because no one forces Ubuntu to distribute it...

So, without a third-party claim (wherein I might cross-claim against Novell for inducing me to infringe by writing the infringing code in the first place), what would Ubuntu's other options be? As it turns out, there are many, not to mention the most obvious one, which is to prove that the code is not infringing at all:

1. Ubuntu could turn to others in the open-source community to identify prior art and seek to invalidate the claim based on prior art. Efforts are already underway in this regard. You can bet that the validity of Microsoft's patents would come under heavy scrutiny if it ever chose to use them in court. I suspect that Microsoft would dearly love to avoid this, as many of its patents are likely not very credible (a problem that plagues most patent holders, and not just Microsoft).


2. Develop a non-infringing work around (a common solution found in every software license I've ever seen.)


3. Remove the code, assuming the allegedly infringing code is not critical. (Microsoft would likely only sue against something critical in order to wreak the most havoc, so this probably won't go very far.)


4. Seek a license from the party asserting the patent. (Microsoft would love this.)


5. Countersue under one of Ubuntu's patents, if any, if the party making the original assertion would, by chance, be infringing such patents. (This doesn't help Ubuntu, but it might be something that Red Hat could use, as it holds patents while Canonical/Ubuntu does not, to the best of my knowledge.)


6. Countersue under antitrust law. (In U.S. law, if you get sued, you have pretty much blanket right to countersue for just about anything. A countersuit based on antitrust law comes closest to nailing Microsoft.)


7. Invite the Open Invention Network to launch a retaliatory patent infringement claim against the party making the original assertion of infringement. (I love this one, as it's a great way for the community to use the tools of proprietary vendors against themselves.)

Ubuntu, of course, would likely do more than one of the above. I also believe that with something like Linux, enough is at stake that a number of the non-Microsoft-owned Linux distributions would have a strong interest in defeating the patent. I also believe that others, such as IBM, Oracle, Sun Microsystems and Hewlett-Packard, with open-source and/or Linux businesses or businesses that depend on Linux's growth would have an interest in stepping into the fray. Think they'd keep aloof? Take a look at what has been happening in Red Hat's FireStar case.

This is one of the great things about being part of a community: any aggressor against a member of the community is effectively an aggressor to that entire community. You can't just nail Ubuntu to the wall and hope to get your way. Microsoft would have to take on the entire Linux community, in the case of Microsoft's patent FUD, to go after any particular member of that community.

Which is why customers who buy Suse Linux for protection are fooling themselves. You don't look to the fox for protection from itself. You look to the community to force the fox out of the hen house.

There are many reasons to buy Linux support/certification from Novell. Patent protection just so happens to not be one of them. Or not a very compelling one.

Novell has a duty to the community to sell its excellent open-source software for what it is: excellent open-source software. It should not (as it does--I've talked with its salespeople--and which it has gone on the record as noting that it does) use lame patent FUD and equally lame patent protection to sell that software. It does not need to. We don't expect better of Microsoft--it has been competing this way for decades. But we should expect and get more from one of our own.