Microsoft's Claims About Linux Patent Infringement Are Old News And Old FUD

from the we've-heard-this-before dept

Mon, May 14th 2007 3:05am — Mike Masnick

Well, well, well. The tech blogosphere is all abuzz concerning an article that came out this weekend in Fortune that has Microsoft claiming that open source software violates 235 Microsoft patents and that they want royalties for those patents. While some (including people submitting this story to us) suggest this means Microsoft is suing, that's not the case at all. They're just creating their standard FUD -- and it's not even new FUD. In 2004, Microsoft announced that Linux violated "more than 228 patents". This is doubly amusing, since the Fortune piece claims that its interview was "the first time" that Microsoft has ever revealed the precise number of patents. That's not true, unless you count the "more than" as not being precise. Of course, last time this happened, the research group that Microsoft based the 228 number on later said Microsoft took its research out of context. Either way, if all they've done is gone from 228 to 235 in 3 years, maybe that's not so bad.

Still, the key point here is that Microsoft can puff the numbers up and talk all it wants, and it's all just typical Microsoft FUD until they do something. The Fortune article notes that Microsoft has been quietly pushing on corporations to pay up -- and that started in earnest in (well, look at that...) 2004. So, my guess is that the 2004 burst of publicity convinced a bunch of companies to quietly pay up, but things have quieted down and Microsoft is fanning the flames to get a new round of quiet license fees out of companies who get a visit from the big bad Microsoft machine, and feel that it's cheaper to pay up than risk a fight (some might call that a shakedown, but we'll avoid that for now). In the meantime, this really is all meaningless unless Microsoft actually is willing to point out the 235 patents, say where they believe the infringement occurs and is willing to defend itself in court and at the Patent Office on those points. So far, we haven't seen that. Perhaps that's because Microsoft recognizes how badly that would backfire. If there ever were a high profile case that might get the Supreme Court's attention on whether or not software patents are legal, Microsoft trying to knock down the success of Linux seems like just such a case. However, since Microsoft probably realizes its own cases in this area have about as much a chance of success as the ill-fated patent lawsuit SCO filed, which Microsoft may have funded. Even if the case doesn't go to the Supreme Court, the backlash against Microsoft for filing such a lawsuit would not be pleasant and would likely do a lot more harm to its reputation than the benefit of a few royalty dollars.

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43 Comments

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RubberDucky, 14 May 2007 @ 3:35am

MS Patent Risk and VC1
Open source does not use trade secrets and hence is likely to be better reviewed for patent infringement that Microsoft's stuff.

In particular, note what happened to Microsoft's Video Codec when they wanted to get it declared a standard. They released the details on it, which were previously closed source and protected by trade secrets and it was found to infringe on 125 patents:

http://www.theregister.co.uk/2007/04/14/microsoft_vc-1_codec_analysis/

"Effectively Microsoft has been mugged by the attempt to make its VC-1 technology a standard through the Society of Motion Picture and Television Engineers. In so doing it had to reveal how its codec technology worked, and offer a license, and in going to the respected MPEG LA as a patent pool agent, it exposed its technology to all the know how that went into licensing the MPEG 2 and MPEG 4 Level 10 AVC/H.264 codec that has stolen the market."

Quite simply they don't get more infringements, because it's difficult to determine if they infringe from the binaries alone. So the only infringements that can be determined are design patents and similar.

But the risk is there, and it's higher for customers who use Microsoft's products. MS's patent insurance doesn't cover most of the liabilities either.

US patent system has jumped the shark, it's just not funny anymore. If the patent office continues to say "this is a new novel invention" and it isn't, there should be some liability for the damages they cause by that false statement.
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Vincent Clement, 14 May 2007 @ 6:07am

My Two Cents
Seeing as software should not be subject to patent protection in the first place, Linux is violating zero Microsoft patents.
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Matt Bennett, 14 May 2007 @ 6:36am

ok.....If they said more than "blah" and then later stated a precise "blah2", THEN THAT IS THE FIRST TIME THEY'VE STATED THE PRECISE NUMBER OF PATENTS......technically
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skh.pcola, 14 May 2007 @ 6:39am

Pretty ironic that there's a rather large Mr. Softie advertisement in the right sidebar extolling MS virtues over Linux, no?
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Anonymous Coward, 14 May 2007 @ 7:05am

perhaps software shouldn't be patented, I'm not one to say. But seeing as software is written, then certainly it can be copywrited (copywritten?). Either way, it's illegal to copy - regardless of who "owns" it.
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Jim, 14 May 2007 @ 7:21am

Patent Law
Okay, Patent Law is supposed to protect innovation and allow inventors freedom to create. But how can it do that when vague patents allow big companies to destroy innovations because they don't want to fairly compete. Does anyone think this would be happening if Microsoft didn't realize that Linux is offering big companies something Vista doesn't (you know the besides the ability to work). Patent law needs to be changed or we could see a Patent war that would destory both Linux & Microsoft.

Also this shouldn't make it to the supreme court, why? Because do we really want the guys on the supreme court that make up things as they go along to really be deciding another issue they don't understand? They should do research but yeah likes that is going to happen. Unless we stack their clerks with Linux users we Linux would be screwed.
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AC, 14 May 2007 @ 7:29am

copyRIGHT not WRITE
It's copyRIGHT, not copyWRITE (literally, the RIGHT to copy); therefore, it is copyRIGHTED, not copyWRITED or copyWRITTEN.
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Hate M$, 14 May 2007 @ 7:42am

Patents?
Since when does M$ care about violations of Patent?
Seems to me that Jobs would have a wonderful lawsuit for M$ making Vendow$ similar to Mac's.

M$ is in trouble- big trouble Vista is a bust. They can hardly give it away now.
Book stores are dumping Vista books below cost now.
No one wants it.

So M$ has to try and tear down open source because that is where everyone is going.....

So SCO and M$ can play in the same sandbox now and everyone can watch them sue everyone- until they run out of money.....
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Susheel Daswani, 14 May 2007 @ 8:18am

Let MS Bring It....
Mike is correct - this is simply MS FUD. Any company who pays MS's Linux Patent Tax is foolish. There are several worthy defenses to MS's allegations that Linux infringes 235 patents, but the one MS should be most afraid of is patent misuse. MS should not forget it still has a monopoly in operating systems, and using the patent laws to maintain or expand that monopoly would likely violate the antitrust laws.
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LOL, 14 May 2007 @ 8:27am

Hate M$, Vista is NOT in trouble.
Sometimes I find these postings laughable at best...Vista has sold well over 25M (as in Million) copies already, and is selling more by the minute. Whether this be through deals with Dell or other third parties, regardless, they are selling, and selling well.

Microsoft just scored record earnings due to Office 07 and Vista, so when I see people write foolish things about Vista failing, it shows the blind ignorance people choose to have when it comes to Microsoft.

I almost don't want to waste my time responding to such foolish posts. Go do some research next time before staking claims such as Vista is failing...when it's clearly not.
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Fred McKinney, 14 May 2007 @ 8:36am

To Hate M$...
Hate M$, you're right on the money! Better yet, as far as I'm concerned, SCO and M$ can go play in traffic for all I care.

Microsoft is just destroying itself one piece at a time, and it's just a matter of time before M$ is given the last rites. By then, Ballmer will have no one at all but himself to blame for his unbridled arrogance, greed, and lies, and I won't even shed a tear over Micro$oft's demise, that's for sure.
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Ignoramous, 14 May 2007 @ 8:57am

LOL is an idiot
RE: LOL

You are one ignorant Microsoft Fanboy (or may I say GUI LOVER!)...

You miss the whole point! Wake up and smell the C00ff33! Windows Vista is Junk!... J.U.N.K. and people know it, people aren't going out to "BUY" Vista... they are buying a computer and "Getting" Vista, as in choved through your throat without you wanting it.

You know when you buy a new PC from Dell, HP, Compaq, etc.. you get a whole bunch of unneeded 3rd party software that you never use and MOST LIKELY delete (good luck!)????... well, NOW, when you buy a new computer you pretty much getting everything in it full of junk: Junkie operating system, 3rd party junk, oh and pretty colors, beautiful colors that tell me that my computer is awesome!!!
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chris (profile), 14 May 2007 @ 9:02am

the pieces are in place, now the match begins
i find it to be an odd coincidence that SCO sued a number of companies for the same thing with linux and one of the big setbacks SCO suffered was novell saying that it owned the patent on SystemV.

then MS partners with novell and says that it won't go after novell's customers.

now we have this.

oh, and wasn't 2004 when novell made it's announcement about SystemV? wasn't that when the SCO/IBM suit started hitting the rocks?

when MS finally files suit against redhat that patent dispute will make verizon vs. vonage look like child's play.
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Sergio, 14 May 2007 @ 9:25am

Fix me if am wrong, but SCO case was not about patents but it was about licenses. I mean: SCO claims that IBM "steled" his code.
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Joseph Balbona, 14 May 2007 @ 9:47am

Microsoft
Just another example of why the judge in the anti-trust case was a great example of the Peter Priciple.
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Obsurdities, 14 May 2007 @ 10:03am

Trademarking color
I was just looking at my T-Mobile bill and saw this-

The magenta color is a trademark, of Deutsche Telekom AG.

I had no idea someone could trademark a color.
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WTF, 14 May 2007 @ 10:35am

Mike, learn to write
what the F is FUD?
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Yo Mama, 14 May 2007 @ 10:36am

Re: Patents?
Talk about FUD lol
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Love M$, 14 May 2007 @ 10:43am

off topic
How come when M$ comes out with something for free, they get sued to death and lose lots of lawsuits. When Mac puts free software on their machines, nobody cares.

P.S. Hate M$, Mac did not invent that interface, it was Xerox and Xerox licenses it for $1 per OS version coded. This means that when MS creates a new OS like Vista, it just needs to pay a 1 time fee of $1 to Xerox.
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FUD, 14 May 2007 @ 10:57am

FUD
FUD:
1. A Scottish colloquialism for vagina
2. Fear, uncertainty and doubt, a marketing strategy
3. A Mexican brand of cold cuts and hot dogs
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Pele, 14 May 2007 @ 11:45am

Re: My Two Cents
Vincent, can you explain to all of us why software should not be subject to patent protection? While I feel like most people that our patent system allows to many vague and obvious patents through, as a developer at a startup software company, I feel much more secure knowing that my investment in the company is protected (to a certain extent) by the patents that we have on our software. If it were not for the patent system the people that spend the time and money to actually inovate would never see any return on their efforts because others would be allowed to simply copy their product at a mere fraction of the original cost.
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Jerry in Detroit, 14 May 2007 @ 12:44pm

Re: Trademarking color
So, if I trademark the color puce, Detsche Telekom AG can't touch me?
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I claim Yellow!, 14 May 2007 @ 1:45pm

Re: Re: Trademarking color
LOL! It's true!

Deutsche Telekom claims to own the colour magenta

"We have registered the colour magenta as a trade mark in the telecom and on-line services sector. We have to go after infringers to protect this trademark."
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Reed, 14 May 2007 @ 2:46pm

Re: Re: My Two Cents
"Vincent, can you explain to all of us why software should not be subject to patent protection?"

You can try looking here at

http://en.wikipedia.org/wiki/Software_patent_debate

To get some idea of what is going on and what is at stake. For me it is a ideological decision. I think software is like mathematics, you should not be able to patented the best way of solving a math problem nor the best solution for handling a software issue IMHO.

"While I feel like most people that our patent system allows to many vague and obvious patents through, as a developer at a startup software company, "

Interesting, this is what I hear from you comment. I don't think patents are good, but I still want governmental protection for my stolen/borrowed ideas. I want security that should not be guaranteed to anyone. When my bushiness model fails I want to be able to litigate to make back my investments.

"If it were not for the patent system the people that spend the time and money to actually innovate"

This is pure BS, but your entitled to your opinion.

How about selling software as a service? This eliminates the need for all the protections software patents offer. No-one can easily copy a service you are heavily invested in thus you have your protection. When you get lazy someone else can come along and pick up the slack the way it should be. Stop whining for governmental protection! Considering the software industry is already heading in this direction maybe you should try it?
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dan, 14 May 2007 @ 3:03pm

show us the code
http://showusthecode.com/
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Anonymous Coward, 14 May 2007 @ 6:13pm

Odd way to litigate
I have a sneaky suspicion that MS is trying to settle something out of court that is or may be borrowed under a GPL license.

I can support this by the level of ambiguity in the press releases, and the way it's being delivered. While it was directed towards the community, and OpenOffice was singled out, which is odd. This leads me to believe some functionality may be in a new product or add-in for Office...?

Some patent or copyright somewhere is owned by FOSS/Open Invention Network, OpenOffice, or other GPL program is a keystone of something new.

Swinging around a bag of 250 patents on the Community is not a way to make it happen. Ends don't always justify the means.
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Lawrence D'Oliveiro, 14 May 2007 @ 6:48pm

Why No Software Patents
Why shouldn't software be patented? Because it's already protected by copyright. No other field of human endeavour gets to "double-dip" with legal protection in this way--nothing else that is patentable can be copyrighted, and nothing else that is copyrightable can be patented. So why make such a special exception for software?
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Ray Trygstad, 14 May 2007 @ 8:51pm

Gee, so what else can we run on our X86-based serv
As an IT Director, this whole issue actually got me to thinking "Gee, what else can I run on my X86 servers?". My first thought: Solaris! Sun has already been though one lawsuit mill with Microsoft--and won as I recall--and their product, without support, costs oooh what: $0.00? Does anyone really think Microsoft is going to sue folks running Solaris? (And in all honesty, does anyone feel they're going to actually sue anyone?) But please, if Microsoft does scare you into dumping Linux, well, the least you can do is to dump Microsoft at the same time! So if you're really scared, maybe dumping Linux AND Micro$oft and running Solaris is the answer. But please, don't pay up: this is just a shakedown.
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Charles Griswold, 14 May 2007 @ 9:26pm

Re: Mike, learn to write
what the F is FUD?
Short for Fear, Uncertainty, and Doubt.

When in doubt, use Google. It will keep you from looking like a clueless n00b.
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Anonymous Coward, 15 May 2007 @ 9:05am

Charles Griswold's clueless turd
"When in doubt, use Google. It will keep you from looking like a clueless n00b."

You obviously didn't get the point he was making. Reader's shouldnt have to look up these slang terms. Also, it was answered in earlier post. I suppose this makes you the clueless noob.
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James, 15 May 2007 @ 9:13am

Why we need patents
Software does indeed need patents. Software development is much more complicated than math. Some software can be thought of as inventions.

As a small company, it is key for us to patent our unique products before we develop them. Software development can cost us about 2 million dollars. That is 2 million dollars that we have to borrow from investors. There is a lot of investigating, trial and error. After investing a lot of time and money in such a product, a big company can look at what we did and copy it for much less.

They also have the ability to market it at a much larger scale.

Without the patent, anything we develop will be copied. There is NO way we can compete with a company that has unlimited money. There is no reason for us to invent such innovative products that will help the greater whole.

Therefore, such patents are necessary.

I do, however, think that the patent system needs to be fixed. There are too many patents getting awarded for obvious ideas. Patents should "only" be awarded for innovative ideas.
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Anonymous Coward, 15 May 2007 @ 2:47pm

Re: Hate M$, Vista is NOT in trouble.
hmm.. 25 mil is laughable... especially considering the monopoly. Just about everyone switched to XP, and noone I know has switched to vista.. :/
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reed, 15 May 2007 @ 3:35pm

Re: Why we need patents
"Software does indeed need patents. Software development is much more complicated than math. Some software can be thought of as inventions."

Granted writing thousands of lines of code is more complicated than a typical math problem, but the basic principles are not. Software does not inherently need to be patented for any reason. If it is a truly unique innovative idea (Which I doubt your company is capable of) then it will not be copied quickly enough if you continue to innovate. Patents have constricted software development far more than helped it.

It allows big companies to stockpile patents as they do every year and force small businesses to pay up, get bought out, or pack it up and go home.

"Without the patent, anything we develop will be copied. There is NO way we can compete with a company that has unlimited money. There is no reason for us to invent such innovative products that will help the greater whole."

Your code is protected by copyrights already. You are arguing that you should have additional protection so when you hit the big bucks you can continue to rake it in long after competition should have diminished your profits. You are arguing for monopolistic power of ideas and concepts that are NOT unique to your development team.

IF you for a second believe that you can own software concepts or ideas you are arguing that others cannot come up with the same idea independently. This is rather silly as these types of concepts probably existed before your company was around and are widely held by experts as common sense.

"Patents should "only" be awarded for innovative ideas."

This line is so smudged you couldn't tell where innovation and common sense ends and begins. You can look at history for thousands of examples of inventions and ideas that were created around the world at the same time. You can not own ideas and concepts, even for a limited amount of time, so stop trying to pretend you can.

You owe ideas and concepts to the human race not your wallet. Be grateful so many have come before you and allowed you to create what you can. Don't spit on them by pretending you can now own a concept that you couldn't even attain if it wasn't for them. This type of selfish development is exactly what is wrong with the software industry. As consumers we want superior products not superior profits. The two aren't necessarily exclusive, but it stands to reason that the concentration on the later does end up precluding what software could become.
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Raymond, 15 May 2007 @ 10:32pm

Re: Why we need patents
How do you suppose that software development is so much harder than "math"? Do you know any maths? (I'm Australian - we use an 's') Perhaps if maths is to be considered easy you want to earn yourself $7 million http://www.claymath.org/millennium/ and fund your startup yourself?

Mathematics is not patentable because you are supposed to be patenting machines that are truly revolutionary not abstract ideas. At least this is my understanding. Ideas are not patentable because that's not the point. The point is that you share your method of doing something revolutionary with us and in 20 years time we get to use it with a full working knowledge of it.

If your idea is, in fact, worthy of patenting you won't mind telling us what it is. The difficult part is of course that we couldn't figure out how to do it ourselves. Copyright is what prevents people from "stealing" your code. A patent would stop people using your method. Is the revolutionary method the key here or that nobody has yet demonstrated your idea?
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Another James, 17 May 2007 @ 10:41am

What is software?
All this discussion about whether software is patentable can be addressed by defining software. Everyone who thinks software is "code", code can not be patented. I didn't say "should not", it can not. While a patent application can include code (or psuedo code) to provide the required enablement (how to practice the invention), the code isn't patentable. Code can be copyrighted, but that provides no real protection. You can copyright all your code, and I can "steal" your code, port it line for line to another language, and sell it. The copyright won't protect you from that or any number of other workarounds. A patent, on the other hand, doesn't protect the code, but the methods, systems, processes, etc. My port of your code would still violate your patent.

To the person that mentioned how software is a "double-dip" into intellectual property protection, let me put it this way. If you created a better mouse trap, and wrote a patent application for said mouse trap, then copyrighted the text of your patent application, that's doing the same thing. And just as that copyright would be pretty useless, so is a copyright on code. You can double dip with just about anything, people just don't do it because it's not worth it.

Finally, to those that think there's nothing novel about software because of the work of those that came before... well, you just don't get it. Can Intel patent their latest CPU when it's just another integrated circuit? Is an integrated circuit not patentable because it's just a bunch of transistors? Is the transistor not patentable because the vacuum tube already existed? So we can't patent software because it's all just... what? code? instructions? bits?

An invention is an invention. If I create a new method of doing things, that's patentable. (In many cases, even an old method applied to a new problem is patentable.) If I do it in software, you guys are saying it's not patentable. All software could be implemented directly in hardware. If I were to do it in hardware, is it patentable now? Or how about an FPGA? It's the same invention. So what's the difference?

The invention is not the code. Code is not patentable. An invention is patentable regardless of the implementation. "Software" is just an implementation detail.
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Reed, 17 May 2007 @ 12:20pm

"Code can be copyrighted, but that provides no real protection. "

This is hogwash. You are protected and if I were to copy your code line for line or even a piece of it you could seek damages against me.

"well, you just don't get it. Can Intel patent their latest CPU "

Your confusing patenting a physical object with an abstract idea like "double clicking" on a icon. We do "get it". Patents don't make a lot of sense period and when they are applied to software concepts they become absolutely ridiculous.

I suggest you take some time to look at the debate so you can understand both sides more clearly. The bottom line is patents are an idea that once looked good on a piece of paper, but now they make little sense the way they are setup. This is highlighted in the huge amount of obvious and common sense software patents that are granted every year. The system is broken and until you recognize that there are major problems there is little more to discuss.

Patents do not protect innovation, they do not encourage it, and they are not necessary for any realistic reason. Patents now have even crept their way into our universities and public projects destroying the very premise of giving back to the community. They are destructive and only serve the interests of the few at the cost of progress to the masses.
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Another James, 17 May 2007 @ 2:25pm

I'm the first to admit that the USPTO has problems, and they grant a lot of stuff they shouldn't. That doesn't mean all patents are bad nor does it change the need for them. USPTO problems aside, you can not patent an abstract idea. A patent application must contain enablement sufficient for one skilled in the art to practice the invention. If all that's there is abstract mumbo-jumbo, it shouldn't get issued. If it does, that's a problem with the USPTO, NOT a problem with patents.

Every university or institution has it's own motivation, the bottom line of which is usually money. If their students or staff invent something patentable, the university will persue the patent and sell licenses. Are the licenses priced fairly? Does the money go to the right places in the university? Do the actual inventors get any of it? All valid questions, but they're not patent questions. They're university policy questions.

Fix the USPTO. There's no need to be anti-patent when the problem is with the beauracracy that grants them. A patent's job is to give the inventors/assignees an exclusive license to the invention for the duration of the patent. This prevents others from stealing the invention. I've personally seen patents protect a small company from a much larger one (a former partner that decided they didn't need the little guy anymore and would just take what they needed.) A copyright on code would not have helped. The patents did. Sounds like a Good Thing(tm) to me.

Speaking of the USPTO problems, some of those have really come about from the federal circuit courts. Very long discussion. Check out the recent KSR/Teleflex ruling by the Supreme Court... it will hopefully go a long way towards cleaning up the obviousness problems, but like anything else governmental, the wheels turn slowly.
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Steve, 17 May 2007 @ 4:04pm

Grace Hopper
I thought patents were for implmentation of an idea, not for the protection of idea. It seems under current granting system Newton could patent calculus.
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Raymond, 17 May 2007 @ 4:47pm

Re: Grace Hopper
Except for the fact that Leibniz published it first.
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Tony Bove, 20 May 2007 @ 1:57pm

Nothing is revealed
With its monopoly on operating systems, Microsoft can't afford the bad publicity of opening a can of worms with the Justice Department over whether or not the company is using patent laws to maintain or expand that monopoly -- which would likely violate antitrust laws. Besides, Microsoft does not want these patents studied, disputed, or worked-around. It is likely that of the 235 patents, half are vague enough to be disputed. U.S. patent laws allow for time to rectify errors or transgressions (assuming they weren't knowingly committed), and the Open Source community would probably jump on the opportunity to devise work-arounds for the rest of so-called infringements. That would leave Microsoft with a dwindling supply of patent infringements to claim. Microsoft would rather keep the Open Source community muttering underneath its breath, and reveal nothing.
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francis hagel, 24 May 2007 @ 3:49am

Microsoft patents
The real risk for Microsoft should they decide to assert their patents in court is the counter-claim based on antitrust law. For a company in a dominant position, asserting patents is arguably an abuse of dominant position and a violation of antitrust law. This is not a risk Microsoft can take lightly. The Microsoft patents that scare the OS community to death are perhaps nothing but paper tigers. Note that these patents are useful for Microsoft anyway for defensive purposes - they reduce Microsoft's risk of being sued for patent infringement by third parties.
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spikey27 (profile), 9 Oct 2010 @ 2:24am

Re: Patents?
Microsoft is the biggest violator of trust, etc. on the planet, having stolen from or threatened to sue competitors out of existence when they wanted to use a "feature" the latter had developed.

I think it is hilarious they claim to be an honorable outfit when they are nothing better than common criminals.

Hopefully, someone will find a way to destroy them, just like they have done to so many others.

Although they have always been a-holes, things became far worse after Balmer took the reins.

Maybe they'll get his sorry a$$ in the process.
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spikey27 (profile), 9 Oct 2010 @ 2:33am

Re: Trademarking color
About 20 to 25 years ago Kodak sued, and stopped a Japanese company from using its "colors" on boxes of photographic film, the stuff they used before digital came along.

The colors? A yellow box with a different color folded down from a corner. I'm pretty sure it was red, although I seem to recall possibly other colors being used.
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