Microsoft agitates for open-source patent pacts

Company's more threatening stance spotlights its effort to pressure open-source firms to license its patents.

Following some frosty responses to Microsoft's controversial patent deal with Novell last year, the software maker has begun a more aggressive attempt to persuade open-source software companies to license its know-how.

In an interview with Fortune magazine published this week, Microsoft's top lawyer, Brad Smith, provided a stark tally of 235 Microsoft patents the company believes are violated by free and open-source software, though he stopped short of detailing any. Specifically, he alleged that the Linux kernel violates 42 Microsoft patents; its user interface and other design elements infringe 65; infringes 45; and other packages infringe another 83 Microsoft patents.

Microsoft could have several motives for rattling its patent saber: slowing down open-source rivals, raising fears of open-source legal risks among customers, and winning payment for technology the company believes it deserves from a group that's generally been unwilling to pony up.

But according to Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, the company's move is designed to bring parties to the negotiating table that currently aren't there. "There is nothing specific about open-source software that warrants an exception of the intellectual property laws that apply to everyone else," Gutierrez said. He called the purported patent infringements "not accidental."

Microsoft is a major player in the existing legal and business establishment for handling intellectual property, which includes assets such as patents, trademarks and copyrights. That framework gives considerable power to incumbent companies with large patent portfolios and sufficient resources to pursue more.

"It's a game in which those who have a lot of resources to throw around have a lot of advantage," said Tom Carey, a partner in the Boston-based intellectual property law firm Bromberg & Sunstein.

As an example of what it would like to see, Microsoft points primarily to the Novell patent deal struck in November, in which Microsoft is selling coupons that permit use of Novell's Suse Linux Enterprise Server along with the assurance that Microsoft won't assert its patents against customers. It's unclear how high open-source patent protection is on most companies' priority list, but Microsoft has made a big deal out of the fact that Linux protections are included in two patent-swap deals this year made with Samsung and Fuji Xerox.

Raising the prospect of open-source patent risks might not be likely to make Red Hat, the top Linux seller, overcome its current unwillingness to pay Microsoft for patent rights. But it could pressure Red Hat and others indirectly, either through jittery customers or through big-business partners such as IBM. That's Microsoft's hope.

"We don't think that customers will want to continue on without a solution to the problem," Gutierrez said. Microsoft also pointed to the fact that AIG, Credit Suisse, HSBC, Nationwide and Wal-Mart all have bought the Linux Suse Linux coupons from Microsoft.

But does open-source infringe?
The only problem with Microsoft's plan: so far its actions have only rallied the open-source troops, and not everyone believes the open-source gang egregiously violates the intellectual property regime.

"I don't think open-source is not playing by existing intellectual property rules," said Mark Radcliffe, an intellectual property attorney with DLA Piper. "Currently, open-source (participants) use copyright for everything they do. A lot of open-source companies have patents."

Radcliffe also derided Microsoft's reasoning that the purported open-source patent violations aren't accentual because the company thinks hundreds of cases exist. "It's an illusion or deceptive to say merely because there apparently are potentially a lot of patents infringed, it's intentional. That's certainly not the legal standard," he said. "I would also be willing to bet, given the number of patent suits against Microsoft that they've lost, under their own theory, Microsoft itself is intentionally infringing."

The fact remains, though, that patents and open-source software can be anathema. Patents give exclusive, proprietary rights to those who hold them, but open-source software is built on a philosophy of free technology sharing. Many in the open-source realm deride software patents and have been lobbying to curtail their influence.

When Novell and Microsoft announced their patent deal, the Free Software Foundation was quick to say it would move to prohibit such arrangements in a future version of the General Public License (GPL), the most widely used open-source license. The most recent draft seeks to prohibit all future deals of that nature and potentially past ones, too.

The timing of Microsoft's pronouncement is telling, Radcliffe said, "particularly when you think that GPL version 3 is still in draft. I don't think that is a coincidence," he said.

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