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Microsoft's intent on forcing IP into IT talk

The software company's vice president of intellectual property, Horacio Gutierrez, thinks that cooperation starts with patents, but his message misses the boat.

Is Microsoft the last holdout on an outmoded way of doing business, or is it the vanguard for intellectual-property licensing schemes that herald a new age of competitive cooperation?

Horacio Gutierrez, a friend and vice president of intellectual property and licensing at Microsoft, believes that it's the latter and argues that the best way to ensure true interoperability while simultaneously competing is through patent cross-licensing arrangements:

At the heart of these business arrangements is an honest recognition of the value of the intellectual assets that drive innovation. Such arrangements strike a balance between intellectual-property incentives that encourage, recognize, and reward innovation, and practical mechanisms for sharing intellectual property that are responsible, accessible, and affordable.

At Microsoft, we have created many such business arrangements--more than 500 in just five years--through the licensing of our intellectual property...In the coming months, we will continue to forge such agreements, and we call upon others to do the same.

Carefully crafted intellectual-property licensing deals help all of our customers maximize their IT investments by making sure hardware and software work well together, and they facilitate the sharing of intellectual assets through pragmatic business agreements that drive greater innovation and value in the IT marketplace.

Point taken, but this overlooks one major obstacle to such arrangements: need. Microsoft convinced Brother recently to license its patents so that Brother can run Linux drivers in some of its devices. Did you catch the oddity in there? Microsoft doesn't make drivers, Linux-based or otherwise. What intellectual property of Microsoft's did Brother need to license?

Only Microsoft knows, and it's not telling, despite repeated requests for Microsoft to open up on the patents it alleges that Linux violates. It's fine for Gutierrez to claim that intellectual property is the foundation for competition and cooperation, but when Microsoft is only willing to cooperate behind closed doors, it smacks of extortion, not partnership.

Microsoft has aggressively been acquiring patents over the years--10,000 of them now--and undoubtedly, these come in handy when doing broad cross-licensing pacts with other patent giants, such as IBM. But it's unclear why patents must be the gateway to cooperation, a fact pointed out by Microsoft's recent interoperability partnership with Red Hat, which included no patent licenses.

The foundation for partnership is trust, not intellectual property--something I've been telling Microsoft for years. Intellectual property must be respected, to Gutierrez's point, but Microsoft's fixation with intellectual property as the foundation for meaningful cooperation will prove its biggest stumbling block, and not its winning argument.

Microsoft should look around to see how IBM and other big patent holders use their patents. IBM seems to be able to work with open source just fine without waving its patent portfolio around. Microsoft should do the same.

Follow me on Twitter at mjasay.