May 16, 2007 4:02 AM PDT
Experts say Microsoft's patent quest won't go far
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Microsoft said it released the tally--though not the 235 specific patents--in an effort to bring open-source companies to the table to hammer out intellectual property licensing deals similar to the one struck by Linux seller Novell in 2006. But industry experts said the declaration's implicit demand--that companies with open-source software should figure out what Microsoft patents they're infringing and come to the negotiating table--is unrealistic at best.
In general, searching for potential software patent violations isn't practical, given the number, breadth and opacity of patents in the United States. Not only that, but it's at odds with Microsoft's own policy to wait for patent holders to get in touch with it if they think there's infringement.
In fact, searching for potential patent problems can actually leave a company financially exposed: if a lawsuit concludes a patent was infringed, a company or individual that knew about the potential infringement must pay triple the financial damages compared with an unknowing infringement.
"The fear of willfulness is so great that often firms instruct their engineers not to look at patents," said Matthew Schruers, senior counsel to a tech lobbying firm called the Computer and Communications Industry Association. Because of the willfulness issue, the expense of searching patents and the difficulty of actually understanding them, "It's gotten to the point where most software application developers cannot plausibly say they've conducted complete patent searches," he said. (The CCIA, although counting Microsoft among its clients, scorned its patent move on Monday as "very troubling.")
Though Microsoft has paid $1.4 billion in three years to license others' patents, the company indicated that it takes a more passive role when it comes to licensing others' patents.
"If a company believes we are using its intellectual property, they should come talk to us," the company said in a statement. It didn't respond Tuesday to questions about whether it has notified specific parties such as Red Hat or Linux kernel leader Linus Torvalds of any of the alleged infringements.
Torvalds defiant
Microsoft said the Linux kernel infringes 42 Microsoft patents, but Torvalds is among those who refuses to investigate whether he's violating any.
"There are several reasons why engineers should not read other people's patents, only their own. And it's not a 'hide your head in the sand' issue, it's a very practical issue of it being a waste of time," Torvalds said.
senior counsel
Computing and Communications Industry Association
For one thing, developing technology without looking at patents lets a person honestly say they developed that technology independently, which helps show that the patent in question doesn't meet the requirement of a technology not being obvious, he said. And engineers aren't likely to comprehend patents in the first place: "Unless you have a patent attorney at your side, patent language usually makes no sense."
He derided Microsoft for spreading FUD (fear, uncertainty and doubt) rather than tackling the issue forthrightly. "If Microsoft were to actually tell people what patents they claim we violate, we could either laugh in their face and show prior art, or just show them to be obvious, or we could do things differently," he said.
Some, including David Jenkins, an intellectual property attorney with Eckert Seamans, believe in a more active patent-hunt approach. For example, Motorola should probably look for patent issues in Linux before shipping a Linux-powered mobile phone, he said.
But doing so isn't easy, and "Most people should not attempt to perform a search," he said.
"Finding a patent, especially a software patent, on the U.S. Patent and Trademark Office Web site is very difficult," Jenkins said. "Almost nobody calls everything the same thing...Either you use a (search) term so broad that you get a return of 1,000 patents, or if you narrow it down, it's likely you're going to miss a lot."
Jenkins' firm charges about $1,000 for a patent infringement search, but the prices go up in cases where a search yields more patents that must be scrutinized.
And even Jenkins could think of only a single instance when a client went back to refresh an existing search with up-to-date results. The frequency of checking "depends on how litigious the patent owner is going to be, and are they going to catch you," he said.
See more CNET content tagged:
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engineer,
Linux kernel,
open-source software
I gave Bill Gates credit for alot of developments including making the Windows operating system the OS choice of the masses. But like Dr. Jekyl and Mr. Hyde, Bill Gates and Microsoft has become an evil empire who's only focus is to destroy all competitors, and crush free thinking.
Why won't Xerox just tell Microsoft to forget it.
Lets remove the gui from windows once Xerox in court wins.
MSFT as a bunch of lawyers who got their hands on an OS is an old paradigm for interpreting the company's direction (or lack of). This latest gambit indicates that the lawyers are not only in control but that they're completely out of their minds. If someone actually takes these idiots seriously, MSFT may end up with another company pulling the trigger on the company first and it is certain the company would lose some part of the contest in court.
In this way, the lawyers really are pushing the company into harm's way for no good reason other than their own savage entertainment. FOSS is not going to go away. MSFT knows that. Unfortunately, it has no imagination about how to work with it other than pretending it can manipulate contracts and courts to make it disappear, very much indicating a 'childlike belief in their own omnipotence.'
After the Vista train wreck and pathetic consumer electronics plays, it is clear the company is at sea now without a chart or a compass. What's worse is that at the helm is one big fat chair-throwing, psychotic, narcissistic fool taking navigational directions from passel of deranged, whining child men shouting that the land must come to them.
The next few years are going to be incredibly ugly for this company. Couldn't have happened to a nicer bunch of guys.
It'd be hilarious to see Xerox, Lucent, IBM, Apple, Siemens, Matsushita, RCA, HP, Unisys, etc. just get together, rummage through their patent portfolio, grab some easily identified instances of MSFT infringement and sue MSFT first.
Like all crazy bullies, they'll be shocked when the big kids get sick of him and stuff him in the dumpster behind the school.
would be a huge public relations disaster, giving users yet another
reason to abandon Windows.
They have to be really scared of Linux to believe that lawsuits are a
better option.
Even deravative works, building on other peoples efforts are perfect so long as you honor the original work.
If I build that 200 mpg Fuel Injection system for use on GM cars...I've done the world a good thing and deserve my patent and GM if they didn't invent it doesn't.
The patent and copyright systems are manners of protecting those efforts - of providing incentives and potential rewards for those discoveries or expressions that we so value, or may learn to value.
Regardless of what one thinks about MSoft's tactics here - the underlying private property-based system does work, and shouldn't be cast aside because some feel poked in the eye by MSoft's statements.
MSoft isn't the only company who has patents, or protects vigorously its IP portfolio. This quest to protect that property remains valid on its own no matter who's doing it.
Wow. I really had respect for this person, but it's been shaken by this irresponsible comment. He's done a great disservice to the open source community and damage to his own credibility as a representative in the field. I just can't believe he said that. It's just... so irresponsible.
Thanks Linus. Should we follow your advice and ignore reality when we design our next product? Hey, here's an idea- I'm thinking of making a new OS and calling it, oh, I don't know... 'Linux', maybe? Nah, too short. Let's call it 'Red Hat Linux'. Yeah, that sounds better. And since you don't want anyone to bother with checking for patent infringements, I should be perfectly in the clear to go ahead and sell the product. With your logic, when RedHat comes along and wants me to stop, I shouldn't have to, right? I mean, you told me to ignore doing any sort of patent research so I can't be held liable for my actions, right?
Geez, I swear the guy is getting more senile by the day. Reality check time!
All patents owned by Microsoft are well defined, it should not be a complicated matter for s/w programmers to see if their s/w has violated any patents owned by Microsoft.
Analyzing patents may be excruciating for me, but I don't write software.
Software programmers need to read up on the ethics of software programming, software licensing and software patents, how can learning about patents/licensing etc be any less important than writing code?
Accusing Microsoft is not the answer.
Before discussing the speck of dust in another person's eye, it would be instructive to look at the log in one's own eye.
All these corporations and foundations have attorney's and programmers on staff, let them look into Microsoft owned patents.....or stop ********.
Basic argument: In order to overturn the bad caselaw that extended patent law in the USA to cover patents, a court case will need to be launched. Is the SFLC goading Microsoft to become their unwitting ally on eradicating software patents?
Will the comfortable relationship that BSD now enjoy become sour if BSD is successful?
It would be interesting to look at BSD. perhaps the Linux folks should examine BSD s/w....no hint of patent violations....yet......
http://www.unido.org/en/doc/3651
A crime is a crime, even if "everyone" does it...those who think that Microsoft violated their patents do, in fact take Microsoft to court.....those who can get money from Microsoft actually do so......
Why should Linux be treated any different if it did indeed violate patents...Linux vendors may have to cough up either way......
Supporting a patent free world is a different issue, Linux has been sold in a world of patent rights. The same laws apply to Linux as well...
The double standards in the Linux-fan-mindset are evident.....
Of course it would be interesting to see how many patents Microsoft is infringing upon. I would take a guess and say more than Open Source combined.
Everyone knows that all of Microsoft's products are copies of someone else's stuff.
But their code is closed and therefore it it not open to scrutiny as much. It only means that they can hide infringments where as Open Source is more honest in that it is there for all to see.
The FSF should (if they can) sue Microsoft for infringing on GPL. Then Microsoft could be forced to reveal their code for scrutiny. If they find any GPL code, then guess what? Windows is now open source.
The FSF should take Microsoft head on, the pay off could be immense for Open Source in many ways.
Leaving things as they are is not good for Open Source. Bring all things out into the light, just as Open Source does already.
- Microsofts agenda
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by t8
May 16, 2007 3:29 PM PDT
- They want all Open Source to do deals with Microsoft, so Microsoft can make money from Open Source without subscribing to the GPL.
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See all 138 Comments >>This in turn would slow down Open Source once Open Source coders realise that they are making money for Microsoft indirectly.
That is the true reason for Microsoft doing this and once again they show just how evil they are.
But they should be stopped. No matter what it takes they should be taken to court over this.
And Europe should whip them into line over this too. I don't think the US has the guts to do it. It was proven years ago that Microsoft is bigger then the Bush administration.