The Microsoft Open Source Patent Gambit

[Updated (16-May-2007, 16:00):  Andy Updegrove weighs in brilliantly with his analysis.  Also an interesting CNet article from Stephen Shankland.]

[Updated (15-May-2007, 15:21):  Adding a few links beyond the set in the first paragraph.  PJ at Groklaw, Linus's comments, and Tim O'Reilly weighs in.  The Open Invention Network responded with a press release. And then there's Tim Bray's pithy four words along with Jonathan's commentary.  So public opinion is pretty unanimous.  In the historical words of Bill Gates, "that’s the dumbest fucking idea I’ve heard since I’ve been at Microsoft.”]

I thought I'd said everything I had to say on the topic of Microsoft and patents and open source weeks ago, and would leave it to better writers than I to comment on the latest news.  But I can't.  (Here is the excellent commentary from O'Grady, Asay, and Augustin, and the original Fortune article and Parloff's additional blog commentary.) 

First, to reiterate, as a customer I am completely uninterested in buying something from a vendor, and then paying every other vendor in the space a license to their possible additional but unproved patents.  I'm not even interested in licensing their PROVED patents.  Patents are vendor to vendor discussions.  To make sure the license wonks in Microsoft Legal and Corporate Affairs understand what I mean: As a customer, when I buy my Xerox copier, I do not intend to additionally license patents from HP, Canon, Epson, or ANY other copier manufacturer.  I buy solutions from my vendors, and I expect value for money. I am uninterested in your protection shakedown.  Move on.  The bullying of customers stops now.

Second, why wait for Gutierrez (Microsoft Licensing Director) to identify the patents? 
There are 6723 patents in the USPTO searchable database with an assignee name of "Microsoft".  Of that, 656 use the word "kernel" in the patent somewhere. 

Ohloh.net claims there are 2402 contributors to the Linux 2.6 kernel, another 1433 Gnome contributors, and 422 OpenOffice.org contributors.  That's a starting number of 4257 developers that have a selfish vested interest in understanding this situation and that with a little guidance may have the few hours to spare to tackle a particular individual patent claim that falls into their area of expertise.  That doesn't include all the other developers working on kernels and UI and office suites that may or may not be open source.  If a site like Groklaw posted a searchable "Microsoft Patent Wiki" such that developers could start to register individual interest in particular claims on particular patents and start to aggregate and co-ordinate the information to tear down bad claims, we could help the USPTO (and Microsoft) clean up the bloat and mess. 

You see, intellectual property law is based on an analogy to real property, i.e. LAND.  But unlike real property divided into "claims", each with clear real boundaries, intellectual property claims may not be real.  That's the problem with analogies.  But claim by claim, on patent by patent, collectively the information base could be built to begin to file requests for declaratory judgments.  And it would be important to ensure each is filed separately on each claim -- not collectively on each patent.  Death by a thousand cuts.   

We don't need to gather together in a geographical location to protest such abuses of the system anymore.  This isn't the era of the equal rights or civil rights movements.  Nor do we need to wait for the Department of Justice to fret about whether they have a concrete case against an economic bully.  We have the web.  We could crowd source the biggest patent case in history.    

At the very least, the companies of the world feeling threatened could simply suggest to Microsoft's Friendly Patent Licensing Team that they're going to wait to see what remains of the claims before entering "contract" discussions. 

Microsoft needs to get back in the business of building exceptional solutions to customer problems, instead of chasing a 1990s dream of IBM's secondary revenues from hardware patent licensing, or worse yet threatening those same customers. 

[Disclaimer: Microsoft is a client.  But I swear I'm reconsidering that decision.  It's unclear to me that the mortgage payment is worth this much aggravation.]

Comments

[Sina]

I couldn't agree more. I think Microsoft's lawyers just wanted something to get paid for. It's ridiculous, and just one more example of mismanagement of what could be an incredible company.

I know it's not Ray Ozzie's job, but you really figure he would shout at Gates/Balmer for letting something like this happen.

[Wayne]

This has got to be one of the most bone headed moves Microsoft has made. So far. Every time I think they've reached bottom they surprise me and go even lower.

Are customers interested in this sort of thing? No, customers are interested in great products that make them more productive, and let them do what they want to do. Customers do however notice bullies, and Microsoft sounds like the biggest bully on the street right now.

I do love your idea though - and would be happy to contribute, but I live outside the United States, and that is where the battle needs to be fought.

Wayne

[John Eckman]

I tell ya, the name of your blog makes more and more sense all the time. (http://www.phrases.org.uk/meanings/269700.html)

[Mike McNally]

Sina - it doesn't matter who uncovers prior art for a US patent. Once the prior art is identified, it's identified - anybody can then see that fact for themselves.

[Cassandra]

There is the small matter of triple damages if you are found to have infringed a patent "willfully". This is why most people recommend *not* searching for patents. That, and that software developers aren't lawyers anyway.

If MS wants to cry "Patent infringement!" then it's also MS's burden to specify which patents are being infringed. And *that* is when I will start caring, because right now I can honestly say that to the best of my knowledge, I don't know which patents MS could possibly be talking about.

[Wesley Parish]

Another matter to raise in relation to the "intellectual property rights" metaphor - the IT industry has this nifty little thing called the Internet and the World Wide Web, with which to act as the world-wide control for world wide trade.

Previously, the focus of much of the world wide trade was the sea. And there was a property right called "salvage", which dealt with how much it was worth to remove potentially damaging debris in the form of derelict ships, from busy shipping lanes, harbours, and ports.

Software patents now appear to be a form of derelict that threatens trade; and thus warrants a maritime lien - in the form, I suggest, of the source code of the major product/s alleged to be "defended" by software patents whenever used in an aggressive manner.

Of course, Microsoft isn't aware of small matters such as salvage law when they rabbit on about "IPR" which they "respect", much in the way a cook respects the lobster he's boiling alive, it would appear.

It would soothe my mind no end to know that whenever these Microsoft senior executives pursue a policy of opening their mouths and inserting their feet, they did at least anoint them with ketchup, to hide the revolting taste.

[AB]

I still believe that all unsubstantiated claims of infringement, meant to force other people (individuals or companies) into contracts they would not willfully sign, is a form of terrorism which will damage the economic system of a country.

[Ubuntu-Zenwalk User]

There is also the distinct possibility that thorugh these deals, Microsoft will tie up the high level portion of the organization and keep them from creating work arounds with the patents when Microsoft unleashes its brigade of patent lawyers. Then it is a matter of money and desperation to keep the courts to rule that Microsoft is not a distribution vendor by the wording of the GPL v3. Corporate crimes, which would lead to that kind of ruling, are the most violent and well planned of all forms of organized crime.