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Keeping an Eye on Microsoft
Tuesday, July 20 2004 @ 02:30 AM EDT

The HP leaked memo about MS planning on attacking Linux with its patent portfolio is the subject flooding my inbox. What else is new? This is a surprise to whom? Anyway, memos like this don't leak. They *get* leaked on purpose. So, are we shaking in our boots? No. And here is why.

Patents when they are very narrow can be programmed around. If a patent is very broad, you have a shot at getting it declared invalid.

Perhaps you'd prefer to hear it from Microsoft's Marshall Phelps, their patent strategist, who said this:

"I would use the argument that, especially in the software world, there's precious little that can't be designed around over time."

And as for getting a patent invalidated, remember the Public Patent Foundation requesting that the Patent Office reexamine Microsoft's FAT file patent? Their request was granted, the first step in an attempt to invalidate that patent. It can be done.

Most patents are absolute nonsense, and everybody knows it, including the patent holders. Here's one of my favorites, a patent on who gets to use the restroom next, a patent IBM disclaimed after the Patent Office granted a request to reexamine.

SCO was the big bad wolf when they first started trying to rape and pillage Linux, remember? The headlines proclaimed Linux's doom. They had Microsoft's financial support. And yet SCO turned out to have no teeth whatsoever, just annoyance capacity. Then Microsoft gave money to AdTI and used Ms. DiDio's Yankee Group, and both backfired on them. The world simply sneers at their tactics. Now Microsoft is alleged to be sharpening its patent knives. Oooh, scary. Not. They are a more serious foe, but they are vulnerable too, convicted antitrust violators that they are. The memo indicates that MS has wildly misunderstood the GPL and planned a losing strategy as a result. Here's the stupid plan, according to the memo, as to how MS would attack:

"According to Campbell's memo, the GPL itself invites such an attack. He wrote:

"But it probably doesn't matter, because the GPL license has a mutually assured destruction clause in section 7, if anyone is sued over a patent infringement, no one is licensed under the GPL to ship GPL-ed products. This is probably what Microsoft intends to do.

"Basically Microsoft is going to use the legal system to shut down open source software, and for all of its cleverness, the GPL makes it fairly easy unless a white knight steps in."

This is hilariously incorrect. The article goes on to quote Eben Moglen, who is likely laughing his head off right about now. The genius of the GPL is that proprietary minds simply can't grok it. They just can't. It's like a psychological blindness, where nothing is wrong with your eyeballs, but you just can't see in certain situations. Far be it from me to explain it clearly to Microsoft. May they precisely follow exactly this strategy.

Attacking GNU/Linux is like boxing with a waterfall. It doesn't stop it.

Actually, it'd be nice if Microsoft quit their vicious, anti-competitive ways, but niceness probably isn't in this picture. But it just is true that convicted anti-trust violators may not have it so easy if they try to shut down their competition, no matter what they use as a weapon. There has been some water under the bridge in the two years since that memo was written. Microsoft's name is increasingly mud.

And I do hope this memo gets sent to Mr. Monti in the EU, as the Commission just might like to know what Microsoft has allegedly been planning to do to its competition. Think folks debating the patent question in Europe would find the memo of interest too? A very timely leak, I'd say.

We will have plenty to do, no doubt about it, if something like this actually happens. Meanwhile, the Public Patent Foundation is asking the public for help with their Microsoft Patent Watch project. Spread the word. What usually happens before a patent lawsuit is brought is the patent holder approaches its chosen victim and they negotiate to see if the victim will pay money without a lawsuit. It would be useful to PUBPAT if they knew more details about precisely what patents are being offered around for licensing (the number, for example), if and when it happens, and which companies are being approached, and by whom (could be a surrogate, a la SCO), so if you have such information, and any other specifics, they would like to hear from you. I would too, anonymously if you prefer.

In order to prepare, we probably will want to study a bit about the subject of patents. You can read up on patents on IPWatchdog's web site, starting with the section on Claim Construction.

Claim construction is the process of determining the true scope of a patent by analyzing the claims and defining any ambiguous or arguable terms. Patents are not just defined by their title or specification, as you will see. It's important to understand this, in order to do useful prior art searches, and I expect that we will be doing them eventually. That site will get us started, and it looks like we'd best get started, so we will be prepared and ready. If Microsoft comes to its senses, and it might, there's no harm in learning something new. And if they don't, and they follow through with this idiotic plan, we'll be ready.

Here is the PUBPAT press release of last week.


Public Interest Organization Monitors Patent Assertion by Software Monopolist

NEW YORK -- The Public Patent Foundation ("PUBPAT") announced today the expansion of its Microsoft Patent Watch initiative that monitors and responds to the patent assertion efforts of the Redmond, WA based software monopolist. The initiative, initially an internal activity of the New York based non-profit legal services organization, will now actively involve the public in keeping tabs on Microsoft's aggressive patent licensing and litigation behavior.

"Since the potential for Microsoft to cause significant public harm through assertion of its patent portfolio is unmatched by any other firm in the IT space, we have maintained an internal Microsoft Patent Watch for some time now," said Dan Ravicher, PUBPAT's Executive Director. "However, in light of the numerous reports we've received indicating Microsoft's patent assertion strategy relies on isolating third parties with secretive patent licensing discussions, we have decided to expand the Microsoft Patent Watch to counteract such surreptitious efforts by enlisting the help of the public in collecting as much information about Microsoft's patent aggression as possible."

Prior to today's announcement, PUBPAT's Microsoft Patent Watch initiative has undertaken to comprehensively review and analyze Microsoft's patent portfolio in order to prepare for and respond to any public harm caused by Microsoft's assertion of patents. An early result of PUBPAT's Microsoft Patent Watch efforts was the request for reexamination filed by PUBPAT in April asking the U.S. Patent and Trademark Office to review and ultimately revoke Microsoft's key patent on the FAT File System. That request was granted last month.

Members of the public wishing to submit information to PUBPAT regarding Microsoft's patent assertion activities may email mspatentwatch @


Keeping an Eye on Microsoft | 506 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: hgp on Tuesday, July 20 2004 @ 03:05 AM EDT
so PJ can find them


The purpose of writing is to inflate weak ideas, obscure pure
reasoning, and inhibit clarity. With a little practice,
writing can be an intimidating and impe

[ Reply to This | # ]

OT stuff
Authored by: hgp on Tuesday, July 20 2004 @ 03:08 AM EDT
goes here, to keep the place tidy
(unlike my desktop)

The purpose of writing is to inflate weak ideas, obscure pure
reasoning, and inhibit clarity.
-Calvin (not on SCO(!))

[ Reply to This | # ]

Trolls, fish&banana peel jokes go here
Authored by: hgp on Tuesday, July 20 2004 @ 03:10 AM EDT
so we can ignore them / have a laugh.

The purpose of writing is to inflate weak ideas, obscure pure
reasoning, and inhibit clarity.
-Calvin (not on SCO(!))

[ Reply to This | # ]

Note collapsing of open source and free
Authored by: ktlyst on Tuesday, July 20 2004 @ 03:25 AM EDT
a commenter in the linked newsforge story notes that apache is not GPL. I
think it's important to retain this distinction, because until we have a utopia,

we will still have a need for money. So, there will be a gradation between
money stuff and free stuff. There is also a philosophical difference between
people who give stuff away (OSS), and people who give stuff away with strings
attached (GPLed).

Philosophically, I think the OSS way encourages more gifting of software in
the long term, and is ultimately more liberating, because when you choose to
give something away because you want to, not because you have to, it has a
different energy to it, than if you are compelled to give something away. (yah
yah, nobody HAS to use GPL if they don't want to).

However, as long as there are people concentrating money and power, and
we have a money-based economy, then the GPL is a great tactic on the road
to utopia.

[ Reply to This | # ]

At least GCC is safe ...
Authored by: Wol on Tuesday, July 20 2004 @ 03:35 AM EDT
And how many other things too?

All we need to do there is to collect a list of GPL stuff MS has distributed in
the past. These will be automatically free. Unless, like SCO are claiming to
change things retrospectively, MS tries to be retrospective, in which case we've
got them on copyright instead.

Anybody got old GPL stuff on MS cd's or proof of downloading such from the MS
web site?


[ Reply to This | # ]

So what's your point!
Authored by: Anonymous on Tuesday, July 20 2004 @ 03:36 AM EDT
You begin by suggesting the HP memo was leaked on purpose and then ramble off to
nowhere. WHY was the memo leaked?

[ Reply to This | # ]

PJ you da man!
Authored by: mojotoad on Tuesday, July 20 2004 @ 03:46 AM EDT
PJ, as far as I can ascertain, you coined the analagy "boxing with a waterfall" with this phrase:
Attacking GNU/Linux is like boxing with a waterfall. It doesn't stop it.

BTW, the extent of my search was google. So anyone knows of a hard reference for the analogy, I'd love to see it.


[ Reply to This | # ]

Separating the wood from the trees
Authored by: Anonymous on Tuesday, July 20 2004 @ 04:10 AM EDT
My recommendation would be that we start protecting the most important Open
Source projects i.e. Linux,GNU,Apache,sendmail,samba,mysql by prioritising and
systematically documenting in a public fashion all prior art/obvious
technologies as they relate to the most important Open source projects.

We need more Open Source lawyers/researchers and I think Groklaw can play a
significant part in such a compaign.

[ Reply to This | # ]

Europeans get your mailer ready.
Authored by: Sander on Tuesday, July 20 2004 @ 04:29 AM EDT

All of us Europeans should mail our local MEP patent-sceptics to call attention
to this leaked email. I believe the only thing holding back Microsoft for now on
acting on this patent war is that Europe does not yet recognize these patents.
Even if they act on this patent war while Europe is not in bed with patents yet,
atleast we'll be less effected by it.

Now the Netherlands as revoked its yes vote, we have a huge oppertunity to get
other countries to refrain from voting as well. I believe all we need is another
2 countries...

So get your mailer ready, get set, go...

C++ programming languages, we own those, have licensed them out multiple times,
obviously. We have a lot of royalties coming to us from C++. -- Darl McBride

[ Reply to This | # ]

Trash can o' patents
Authored by: bone_bag on Tuesday, July 20 2004 @ 04:40 AM EDT
Could we start collecting some of M$'s most obviously ridiculous patents and have them reviewed/chucked-out as expediently as possible? Here's one for starters.

[ Reply to This | # ]

Boxing with a waterfall
Authored by: Peter Smith on Tuesday, July 20 2004 @ 05:25 AM EDT
MS has already stated that their enemies are the companies that support Linux.

Their strategy is to attack and weaken or destroy these companies. As you said,
GNU/Linux is like the waterfall. But the companies that support Linux are a
tangible and vulnerable target.

MS strategy seems to be based on the theory that halting the companies that
support Linux will halt its spread in the business world.

MS for now are attacking these companies through a variety of proxies in order
not to provoke anti-trust/monopoly concerns.

[ Reply to This | # ]

*How* to keep an eye on M$
Authored by: Anonymous on Tuesday, July 20 2004 @ 06:03 AM EDT
Here are a few tips to help people get started.

This page at the USPTO has links to the USPTO's databases.

On the left (in the green) are links to search the database of patents that have
actually been issued. On the right (in the yellow) are links to search the
database of patents that have been applied for and published (but not yet

As an example, lets say you want to find all patents assigned to Microsoft.
Follow the link to the advanced search under issued patents and enter
"an/microsoft". This will return a list of 3313 issued patents.

Now, this is how the game works: pick a patent and click on its link. Scroll
down to the claims (they're what define the legal monopoly that has been granted
to the applicant). Once you've worked out the full scope of the claims, you
need to find a document which describes something that falls within the scope of
those claims. However, the document must be published earlier than the filing
date of Microsoft's patent.

Now, if you can do that, then you've done a better job than the patent examiner
did! The 'prior publication' can possibly invalidate the patent.

What would be neat is if some sort of distributed group phenomenon could examine
all of Microsoft's patents like this en-masse. A well-designed site that could
let people submit document references for individual patents together with some
sort of system allowing users to rate(sort) submitted documents would be

Oh, and here's a link to the European equivalent databases:

The following link to the European patent office actually allows you to see the
record of all documents on file for a given application. For example, you can
see search reports for applications. But more interestingly, you can also see
examination reports and the responses to them by applicant's patent attorneys.

[ Reply to This | # ]

Good news for the guy from Holland?
Authored by: Anonymous on Tuesday, July 20 2004 @ 06:36 AM EDT
Couldn't this be a nice bit of information for the guy from Holland, who
reported a couple of weeks ago how the Netherlands would turn their vote from a
"Yes" to an abstention?

[ Reply to This | # ]

Memo suggests the M$ strategy.
Authored by: Brian S. on Tuesday, July 20 2004 @ 06:57 AM EDT
You cannot read this memo too literally. It is HP which is assuming they will
attack with patents or use clause 7 of the GPL. However, to use a Darlism, M$
obviously intends to use "IP" to attack OSS. I now believe M$ are
behind SCOG.

I also believe the world has changed in the last two years and an attack with
patents is not so easy as it might have been due to the uptake off OSS. I also
believe that outside the US, it is not so easy to conduct this kind of campaign
and "politics" become involved. eg. There is no way Sony will roll
over for M$ and I don,t think the Chinese Government will take to them too
kindly either.

However, what if M$ has a go at Apache, will someone stand up for them. They
couldn't stand up for themselves. What if M$ has a go at Open Office, will Sun
stand stand up for it
or mearly pay a small licence for Star Office.

Linux itself, obviously has plenty of corporate support, although if SCOG had
reason to go for HP 18 months ago, would they have stood up to the attack as IBM
has? It would appear not - they were (un)happy to stay on their current release,
no suggestion of carrying the fight. Dell certainly backed off Linux it would

Now let me say, I do not believe that M$ can win the fight against OSS, but this
memo certainly gives an idea as to their their thinking and their are many small
OS projects which have no muscle to fight them. As many corporates will point
out, one of the main problems with OSS is lack of mature applications. What
chance these appearing if as soon as they are born they are attacked by the
Borg. What if M$ can substantially hold up OSS implimentations until shorthorn
shows up.

This memo demonstrates M$ thinking and it should not be treated lightly.

Brian S.

[ Reply to This | # ]

The death of the US software industry
Authored by: Anonymous on Tuesday, July 20 2004 @ 07:30 AM EDT

If microsoft went down this route it would effectively kill of the US software

Assuming countries outside the US continue to disregard US requests to allow
software patents, then we are effectively ending up in a two-tier world, similar
to what we used to have in cryptography. In that sector a lot of work went
abroad and instead of protecting US interests it basically destroyed any demand
for US products - all product development then moved to countries which did not
have the same restrictive policies on the import and export of crypto software
and algorithms.

Companies like SCO and Microsoft have to wise up. OSS Open Source Software is
here to stay. Trying to kill it off will only mean moving innovation elsewhere
outside the jurisdiction of the software patent law war mongering currently
afoot in the US.

Per Olausson

[ Reply to This | # ]

Valuable quote
Authored by: IMANAL on Tuesday, July 20 2004 @ 08:23 AM EDT
"I would use the argument that, especially in the software world, there's
precious little that can't be designed around over time."

Did this quote appear in the original posting of this article? I just reloaded
the page and got the impression that was added?

Anyhow, I wonder how that statement would(/will?) stand up in court in benefit
for Microsoft. Any ideas?

[ Reply to This | # ]

Need movement to eliminate U.S. software patents
Authored by: Anonymous on Tuesday, July 20 2004 @ 08:23 AM EDT
Software patents are simply a tool to inhibit competition. They make the U.S.
less competitive. They favor entrenched companies and pure IP "patent
prostitutes". They do NOTHING to enhance innovation -- instead they
inhibit it.

We need a movement, similar to FFII, to restrict software patents in the United
States. Pubpat is too weak in that it simply addresses the individual patents,
not the law at large.

[ Reply to This | # ]

OT: Re Judge Jones and AZ
Authored by: MadScientist on Tuesday, July 20 2004 @ 08:48 AM EDT
Apologies to all for posting this here but given the number of stories recently
I figured this post would disappear without a trace. (Some might say that would
be a good thin Im sure too).

I have been reading over the AZ transcripts a few times. I may be very wrong
here but my impression is that (1) Judge Jones knew about IBM, DC, and the rest
(2) that he came in with his mind made up about what he wanted to done here.
Recall he suggested the matter could go to trial in next week.

I think he wants the SCO case sorted out pronto. His case load is ~300. There
are ~250 working days in a year so cases filed with him will take time to reach
the court room. Clearing the court house out of dubious merit cases is a very
good idea and I think that Judge J thinks AZ is one such case.

Either SCO have a case against AZ or they do not. A PI - regardless of its
merits financially - means SCO have to put up or shut up. I can recall asking PJ
a some time ago a question about the use of an injunction (which she answered -
thank you) here in the AZ case. Maybe the judge had a similar thought.

My guess is that Judge Jones is using the legal system itself to prevent
'gaming' the system as SCO has been doing elsewhere. The legal system is
designed to try to be fair to both parties but is vunerable to gaming. There are
rules available to the judges - like the use of a PI here - to discourage
gaming. Usually it is one or the other side that try to limit the gaming of the
system but there is nothing to prevent the judge (an ex atourney) applying the
rules either.

If SCO do have a genuine case, they now have the opertunity to show this. If
they are sucessful in showing such a case exists (doubts++) then Im sure that
the judge will consider the relative financial positions of both parties before
doing anything. His PI ruling may well have bene just an attempt to flush out
the evidence

Personally I think this may have been a very smart move of Judge Jones to clear
his court room of a case that he may see as being of dubious merit.

[ Reply to This | # ]

How is their interp'n of section 7 wrong?
Authored by: Anonymous on Tuesday, July 20 2004 @ 09:14 AM EDT
They seem dead on to me:
<i>7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues), conditions
are imposed on you (whether by court order, agreement or otherwise) that
contradict the conditions of this License, they do not excuse you from the
conditions of this License. If you cannot distribute so as to satisfy
simultaneously your obligations under this License and any other pertinent
obligations, then as a consequence you may not distribute the Program at all.
For example, if a patent license would not permit royalty-free redistribution of
the Program by all those who receive copies directly or indirectly through you,
then the only way you could satisfy both it and this License would be to refrain
entirely from distribution of the Program.

If any portion of this section is held invalid or unenforceable under any
particular circumstance, the balance of the section is intended to apply and the
section as a whole is intended to apply in other circumstances.

It is not the purpose of this section to induce you to infringe any patents or
other property right claims or to contest validity of any such claims; this
section has the sole purpose of protecting the integrity of the free software
distribution system, which is implemented by public license practices. Many
people have made generous contributions to the wide range of software
distributed through that system in reliance on consistent application of that
system; it is up to the author/donor to decide if he or she is willing to
distribute software through any other system and a licensee cannot impose that

This section is intended to make thoroughly clear what is believed to be a
consequence of the rest of this License.

If you are sucessully sued, and are enjoied from distributing source or from
distributing the application /source without fee, then your right to use the
software ends.

This does effectively kill off OSS, because they'll go after the legal entities
that represent and distribute. Apache Fountation, KDE e.v., etc. Once MS wins,
and the judge imposes a no-source or royalties, any project is killed. And you
can't just transfer the software to somwhere else, because that would mean you
have unclean hands if you were to take source that was found to be infringing.

I am a long-time and big linux supporter. This has me shaking in my boots
because the future of OSS lies in how a judge words a statement. It also
incredibly disheartens me because I thought we as a society have a duty to build
the best technology we can. MS will do that if that is what the customer asks
for. But now we have a cool new tech (the OSS development model) and they are
killing that off.

I do embedded Linux work. I never was afraid of the platform's future until
today. I've never beileved MS FUD - until Nnow.

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, July 20 2004 @ 09:22 AM EDT
Thank you Mr. Migeul de Icaza. You've gotten many people to waste their time on
a platform that is thoroughly wrapped in MS patents. You added credibility to
.Net by being a 2nd source, but now we find out that was all they intended to
have you do. Once a portable .Net assembly is made, and everyone has meony
investined in .Netsoftware, they can weild and axe and chop out Mono, and leave
.Net around.

I've predicted this from the beginning. .Net openess was just a ruse to
legitimise the platform. Now you've wasted our time, your user's time and
strengthened a MS initialtive.

Way to go.

Miguel cannot be trusted.

[ Reply to This | # ]

My Question is...
Authored by: cfitch on Tuesday, July 20 2004 @ 09:24 AM EDT
why would HP release this memo on MS's patent plans?

PJ implies to strike fear, but that seems strange.

Any clues?

[ Reply to This | # ]

  • My Question is... - Authored by: Anonymous on Tuesday, July 20 2004 @ 11:59 AM EDT
  • Lots of reasons - Authored by: Anonymous on Wednesday, July 21 2004 @ 01:22 AM EDT
Anonymous posts
Authored by: Anonymous on Tuesday, July 20 2004 @ 09:37 AM EDT
You would do wise to take the anynomymous posts with a grain (or a few grains)
of salt.

And yes, I do realize the irony of my post...

[ Reply to This | # ]

Misdirection a possibility...
Authored by: Anonymous on Tuesday, July 20 2004 @ 09:46 AM EDT
The patent attack has been an obvious path for some time, which makes me take
the 'leaked memo' with a grain of salt, and starts me wondering if this is not a
strategy of misdirection, and if so, then from where would they attack next? So,
while we're aware of the possible attack from their patent portfolio, lets make
sure we don't focus on this to the exclusion of all else. Remember, Gates simply
wants (and likes) to win. A failing he had when playing poker was he would bet
it all if he thought he was going to be successful. Today the stakes might be
too high for him to bet all of his own resources, he may use sacrificial pawns
(such as SCO?) to take the brunt of the losses in order to determine what he is
really up against.

[ Reply to This | # ]

Other related thoughts
Authored by: Hop on Tuesday, July 20 2004 @ 09:54 AM EDT
As long as we're being paranoid, I wouldn't put it past Microsoft to try and
plant patented code in Linux. I'd be wary of anyone coding for Linux that's had
close ties to Microsoft in the past several years.

Also, I wonder if the reason for SCO asking for so much info on AIX and Dynix is
that it will somehow end up in the hands of Microsoft so they can look through
it for patent and copyright infringment. What controls are in place to protect
what IBM has given to SCO?

[ Reply to This | # ]

SCO owns ELF?
Authored by: IMANAL on Tuesday, July 20 2004 @ 11:29 AM EDT
From a story in Linuxworld":

"SCO' s two latest filings with the Utah district court hearing its $5 billion suit against IBM claim that SCO's Unix Executable and Linking Format (ELF) codes are in Linux illegally.

The charge was made by SCO VP of engineering Sandeep Gupta in a declaration that is currently under seal, but is quoted, albeit tersely, in the new filings.

If the ELF charge stands, SCO believes it would topple the whole Linux edifice.

ELF is like mortar to the operating system. Stripped out, all its applications would break. And, according to SCO spokesman Blake Stowell, it would not be something that the Linux community could simply rewrite, which is the Linux adherent's pat solution to SCO's infringement issues.

ELF is sorta like Microsoft's DLLs and was developed by AT&T's Unix System Labs as part of the Unix Application Binary Interface (ABI) before Unix was sold to Novell in 1993."

[ Reply to This | # ]

Microsoft Attacks !
Authored by: Anonymous on Tuesday, July 20 2004 @ 11:36 AM EDT
If someone were to obtain all paid proprietary license, to Microsoft's
development libraries ect; then not only would they make the developments for
free (no charge), but the complete sourcecode would be included too: Would they
be doing wrong ?,if I pay for the legal right, can I not do as I wish ?. If HP
is not the one that published this, then I would have to say this could be a FUD

So what is the problem with the GPL ?.
The community must remember the success of opensource right now, change, all
change throughout history has had its fights. I did read this memo is two years
old, and things were moving for linux and opensource then, and Microsoft was in
a better position to stop opensource then too. The threat from Microsoft has
been with us all along, at any time Microsoft could have taken its best shot
when it had more money and more market.

[ Reply to This | # ]

Patents _could_ shut down *nix in NA
Authored by: Anonymous on Tuesday, July 20 2004 @ 11:43 AM EDT
Suggesting that a patent attack is like trying to box in a waterfall may sound
poetic, but the truth is that few companies will expose themselves to a patent
attack unless there is a damn good business reason to do so. Since we already
have M$ firmly entrenched in the desktop market and *nix servers from
proprietary sources there is little reason to accept the exposure to litigation
that using Linux may entail.

In fact, we already have *BSD and at least in the OpenBSD case, it offers a
safer platform in the server arena than even Linux.

Besides, I would expect the attack will be focused against use of Linux on the
desktop. To suggest that the vested interests will not attempt to focus their
attack is pure folly.

This being said, I believe there is some truth in the idea that you cannot box
in a waterfall. India, China, indeed all of Asia and probably all of South
America is unlikly to give a shit about what the USA does as far as patent
litigation is conserned. Indeed there is some evidence that Europe will not go
along with this crap as well.

What this means is that if North America decides to turn itself into a cesspool
of patent litigation then it will be North America that suffers.

In fact, the developing world may smile with glee as the torch of technological
leadership is tossed to them. What an opportunity!!! 10 years from now with
viruses ruining our proprietary desktop systems on a daily basis and our IT
industry dead in the water, we may find that there are excellent opensource
offerings available for import, a vibrant tech support infrastructure available
overseas, and of course a burgeoning robotics industry powered by Linux and open
source solutions... none of which any North American company can take advantage
of because we are all tied up in red tape.

*IF* this senerio comes to pass, it is unlikely that anyone will toss the torch
back into our hands so to speak. History shows that countries have lost their
leadership position and their advantage for much smaller sins.

Some who are interested may like to look at another pillar of our modern
industrial world, that being the supply of energy. There are two (2) sources
that are an excellent starting point: (1) and (2) (look for the World Energy Review). While doing this please note
that Middle East oil production is barely above 2000 production and this only in
a couple countries. Meanwhile, the only reason world oil production is above
2000 levels is because of Canada (tar sands) and Russia. In the Canadian
situation, tar sands is making up for declines in convventional oil ouput,
however tar sands operations need large quanties of Natural Gas both as an
energy source and more importantly as a Chemical Feedstock to supply the
hydrogen needed to lighten the gravity of the Bitumin. If the total Canadian
natural gas resource (much bigger than reserves) were to be allocated exclusivly
to tar sands operations we find that there is enough for less than 10% of the
estimated recoverable bitumin. Clearly there is a serious disconect with
reality going on.

North sea (Britian/Norway) for example went into serious decline in 1999! By
2005 Britian will have to start importing, the question is from where. Would I
be cyncial if I were to suggest that some within the circles of power have
suggested IRAQ as a possibility?

The point I am making is that North American energy sources are pinned virtually
100% to the supply of oil and gas and North American gas is in serious decline.
World oil production is virtually flat with little liklihood of significant
increases above 2000 levels and a strong likihood that it will peak between 2007
and 2010. Meanwhile there are about 30 nuclear reactors being constructed
around the world, none in North American.

So on the one hand our economies will probably be hit rather hard with
increasingly high fuel costs and on the other hand the high tech sector seems
about to at least partically self distruct via a legal attack from within.

I cannot think of a more effective way for an economy to poison itself.

[ Reply to This | # ]

Microsoft's shareholders may force this
Authored by: Anonymous on Tuesday, July 20 2004 @ 11:47 AM EDT
It seems that Microsoft may do this regardless of whether it's stupid. Even if
Gates and Ballmer think this is a bad idea, the shareholders may force it if MS
starts losing marketshare.

If MS starts losing marketshare and the stock starts tanking, the first thought
of shareholders will be that MS should "monetize" it's intellectual
property. This is a common desperation strategy in technology, and it has paid
off before in some cases in the past.

[ Reply to This | # ]

A Patent Counter-Offensive?
Authored by: Anonymous on Tuesday, July 20 2004 @ 11:48 AM EDT
I am definitely not a lawyer, but it seems to me that the Open Source movement
should actually be able to develop counter-offensive capability in terms of
software patents. There are thousands of programmers in the movement. Surely
some of them have developed something at least as patent-worthy as some of
Microsoft’s stuff. So what if some people apply for patents, turn them over to
an Open Source body and have them in reserve for when Microsoft does do its
patent attack? Existing software patents donated or pledged to the cause would
be even better. I would think that there might even be some way to use a
software patent portfolio to threaten the closed source nature of Microsoft’s
software if they get too aggressive. After all, how can you prove or disprove
use of patents without access to source code in discovery. Of course Microsoft
would demand and get some safeguards in the use of access to source code, but if
they have secretly used GPLed code anywhere in their software that would come
out, and if the Open Source movement had a number of software patent-holding
entities set up they could see how Microsoft likes the game they’ve been helping
SCO play, with massive discovery demands and FUD about software patents that
strike at the heart of Windows or Microsoft Office.

The goal here would be to deter Microsoft by the threat of a patent-based
counter-attack, not to attack it as long as it plays nice with its patent
portfolio. Having a lot of patents filed by individual programmer might also
help expose the absurdity of software patents, as companies realize that the
existence of software patents in the hands of people outside of large companies
is a threat to them being able to do business as well as a threat to individual
programmers and small businesses.

[ Reply to This | # ]

Keeping an Eye on Microsoft
Authored by: Brian S. on Tuesday, July 20 2004 @ 12:07 PM EDT
PJ. It seems to me that you have never been involved in the discussions which
can cause private enterprise to act as they do. You have always lived in the
protected world of the system.

I can do as I wish. I can support M$. I can decide to plant a bomb under
Redmond. I can decide that I don't like Apache, I can decide that I don't like

Business is not hamstrung by the legal system and never has been. Business waits
for the legal system to "have a problem with what they do" and then
defends their action to the hilt

I hope you'll forgive me, but I think you're really innocent re business
methods. Whoever leaked this memo( and yes it is obvious that it just didn't
fall out of the filing cabinet), they did it for a reason. I think that reason
was to show just how dirty M$ is prepared to play.

By the way, I am European and I think that those who say that M$ will put the US
at a disadvantage are correct. What happened to your car industry when the
Japanese went for it.

I'd even make a further suggestion. Anyone involved in a real "proper"
OS project like Apache etc. should get out of the States.

Brian S.

[ Reply to This | # ]

Lessons from history
Authored by: RealProgrammer on Tuesday, July 20 2004 @ 12:23 PM EDT

Fear not.

The beauty of the Open Source model really shines in a patent defense. The keys are A) knowing that you have published your source code as soon as you wrote it and B) that the open model makes responding much easier.

If your enemy attacks with a patent infringent case, and points to your code, you may be able to show that:

  1. It was written and published by you or someone else before your enemy applied for the patent
  2. Other software using the same or similar code was published by someone else before application
  3. The thing patented is obvious, or there is some other problem with the patent
If you can't show one of these things, you can still ask your friends and neighbors to help recode.

If your problem is so severe that none of that can be done, then probably you are truly in the wrong. That's ok: it's what patents are for. If you're not making your living off the patented thing, no sweat; turn your hand to something else. If you are making your living off it, then probably your enemy will allow you to pay a royalty to keep in business, and you can raise prices to cover the cost. It's just business, right?

If your enemy is simply trying to force you to stop earning a living off his patented idea, and you can't fight it or work around it, you can still turn your hand to something else, and beat your enemy by being better.

In the old days (ca 1985), a company named Software Enhancement Assoc. (SEA) put out a shareware program called ARC to make archives of files. The ARC format was trivial, similar to Unix tar format. It was the standard file format for sharing files over MSDOS-based BBS systems.

Phil Katz wrote a program called PKArc/PKXArc that used the ARC format, but was a whole lot faster and had other advantages. SEA sued Mr. Katz, forcing him to stop publishing his PKArc. I think it was all about look-and-feel, but they may have showed he used their actual code, I don't know.

Phil went back to the drawing board and wrote a new program called PKZip/PKUnzip. It used a much nicer file format, and compressed most files better, faster, and more reliably than SEA's Arc did.

Yes, the Zip format is the one used natively by WinZip and the Unix zip/unzip. I'm not sure if SEA still exists.

(I'm not a lawyer, but I know right from wrong)

[ Reply to This | # ]

Psychological blindness
Authored by: Anonymous on Tuesday, July 20 2004 @ 12:49 PM EDT
I think the GPL may be even more than this to Microsoft. In one episode of Star
Trek - The next generation Data and Geordi develop an artifical geometrical
structure that can neither exist in real space nor real time. They plan to feed
this structure into the borg collective, where it would overload the brains and
implants of all borg that see and try to understand it.

One can only imagine Microsoft HQ trying to understand the GPL, steam streaming
from their ears, eyes rolling wildly, until they break down and finaly drop
their crusade against OSS ;-)


[ Reply to This | # ]

Who to sue?
Authored by: Jonathan on Tuesday, July 20 2004 @ 12:56 PM EDT

Sorry if this has been asked before, but I'm just curious who a company wishing
to make a patent infringement claim with regard to a piece of free/open source
software would sue. I gues it would either be the author of the code that
infringes (what if it had many authors?) or anyone involved with the
distribution (but it could be distributed by hundreds of people and

If you could sue a distributor, then would they all have to be sued
individually? From what little I know, an injunction is limited to one or more
specified organisations. Therefore am I right in thinking that you could not
enforce a ban on distribution? Or is there some other legal mechanism?



[ Reply to This | # ]

OT: "Linux now a corporate beast " by Joab Jackson
Authored by: edumarest on Tuesday, July 20 2004 @ 02:25 PM EDT
It is easier to quote part of Joab Jackson's article at

"Morton said contributions from such enthusiasts, “is waning.” Instead, most code is generated by programmers punching the corporate time clock.

About 1,000 developers contribute changes to Linux on a regular basis, Morton said. Of those 1,000 developers, about 100 are paid to work on Linux by their employers. And those 100 have contributed about 37,000 of the last 38,000 changes made to the operating system. Morton spoke last week at a meeting sponsored by the Forum on Technology and Innovation, a semi-regular meeting to address technology-related issues held by Sen. John Ensign (R-Nev.), Sen. Ron Wyden (D- Ore.) and the Council on Competitiveness."

The article is here: /vol1_no1/daily-updates/26641-1.html

It appears to me that Congress is getting the message about Linux from people like Morton. This is my first attempt at html so my apologies if the link does not work; it worked in preview OK.

A generation which ignores history has no past and no future.
Robert Heinlein (1907 - 1988), The Notebooks of Lazurus Long

[ Reply to This | # ]

Yes patents can be busted but...
Authored by: pooky on Tuesday, July 20 2004 @ 02:50 PM EDT
This isn't terribly useful to the small company that gets targetted by Microsoft
for using Samba. They certainly aren't interested in being right or busting the
patent, they just want to be left alone so they can do business. When Microsoft
comes knocking with their lawyers and says you are infringing our IP, stop or
else, most are going to stop, and Microsoft knows it.

Only other large companies are going to stand up to Microsoft, but as we have
seen with SCO, large companies are not worth suing if your goal is to get people
to stop using an open source product. SCO doesn't seem to have dented open
source adoption much with its attack strategy. Little people are going to wait
and see what happens with the big lawsuit before they do anything.

So it's all fine and dandy that patents can be busted, but it's much harder to
get them negated than it is to get them awarded. The PTO hands out so many of
these that it will take the PTO, in it's current state, decades to get rid of
them all with today's processes. Call me a pecimist but I don't think it's as
simple to defend as some are making out.

Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

  • Rubbish - Authored by: Anonymous on Tuesday, July 20 2004 @ 06:07 PM EDT
OT: FUDmeister blinks, sputters, falls down the stairs
Authored by: Tim Ransom on Tuesday, July 20 2004 @ 02:53 PM EDT
'Until my second paper on Linux has been accepted for publication by a research journal, I have no comment to make.'
Sez a less than contrite but clearly nervous and out of his depth Stephen R. Schach, from Vanderbilt University, after some of his Ken Brown calibre 'research' started circulating online.
These people are like cockroaches - turn the light on and they scuttle for the shadows.
Can't wait for more of Schach's mendacious idiocy to surface? I'd wager we'll be waiting a long time.

Thanks again,

[ Reply to This | # ]

GPL clause 7, patent statement misquoted
Authored by: Thomas Frayne on Tuesday, July 20 2004 @ 03:11 PM EDT
GPL clause 7 states:
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.
Campbell's statement:
But it probably doesn't matter, because the GPL license has a mutually assured destruction clause in section 7, if anyone is sued over a patent infringement, no one is licensed under the GPL to ship GPL-ed products. This is probably what Microsoft intends to do.

Note the gross exaggeration. A more accurate statement would be:

If anyone loses a suit over patent infringement and does not appeal, then that person cannot distribute GPL'd software containing the patented code, even after purchasing a patent license. Anyone who believes the patent invalid, and is willing to fight a patent infringement suit can continue to distribute the GPL'd software, and anyone with a version of the software that avoids the patent can distribute it.

Note that filing suit does not stop distribution of the GPL'd program involved, much less other GPL'd programs, and anyone who hears of the suit can begin researching prior art and developing a patent avoidance version of the program.

[ Reply to This | # ]

Keeping an Eye on Microsoft
Authored by: Anonymous on Tuesday, July 20 2004 @ 03:22 PM EDT
Even if most of those patents are as stupid as the FAT patent, Microsoft can
still make it very expensive for small distributors by taking them to court.
Patent cases can cost hundreds of thousands of dollars, and several struggling
distributors may have to fold.

It would also work nicely as overall FUD in Microsoft's favor.

I wonder if one can take Microsoft back to court for using patents as the next
anti-competitive monopolistic practice.

[ Reply to This | # ]

Why I think m$oft won't sue
Authored by: seeRpea on Tuesday, July 20 2004 @ 03:40 PM EDT
There are just too many cross patent agreements it has with other big companies
that are involved with GNU/Linux, such as IBM and HP itself.
In addition there are some GPL licensed features in windoz code plus some GNU

[ Reply to This | # ]

OT: The inexorable USPTO black hole continues unabated
Authored by: Tim Ransom on Tuesday, July 20 2004 @ 04:23 PM EDT
Found a couple of Economist articles from 2000 that addressed the worsening patent crisis.

Patent Wars
'The smart ones got in their patent applications early. One such is Jim Rose of Accompany (which has just changed its name to MobShop). The patent office has said that it will grant him a patent on his business model, which aggregates buyers to secure a discount.'
'Mr Rose says he started thinking about group buying in early 1998. He applied for his patent in August 1998. For those few months’ work, he has been granted a 20-year monopoly.'

Thanks, USPTO!

Patent nonsense
Todd Dickinson, the PTO’s director, admits that there is a problem here. “In software, in particular, we need to develop our sources of prior art. We’ve been talking about reaching out to the software industry to get access to more databases,” he says. Still, he argues, the problem should self-correct as more software is patented. - emphasis mine.

Riiight. Run for the hills.

Thanks again,

[ Reply to This | # ]

timely, wonder why MS is clearing their lawsuits?
Authored by: Franki on Tuesday, July 20 2004 @ 06:20 PM EDT
I started thinking about this a month or two ago, around the time that MicroSoft
started handing money out to everyone that had a grievance with them.
(like the 20 million they just gave Lindows.)

They are clearing the tables, why? could it be they want lots of free lawyers
so they can persue heap of patent lawsuits and such?

Microsoft have a long history of being extremely tight fisted with their cash.
(remember the guys that "contributed" to early IE and got not a cent
for their efforts?)

If they are settling all over the place, their MUST be a reason, particularly in
light of the fact that their cash cow, Longhorn, is not due for at least 2 years
and most likely 3.

perhaps my Tinfoil hat has shorted out again, but it seems fishy to me that M$
are offloading money hand over fist at a time when it is least likely to do so.

What other reason could they have for this?



Is M$ behind Linux attacks?

[ Reply to This | # ]

How can apache be a target?
Authored by: Franki on Tuesday, July 20 2004 @ 06:25 PM EDT
I might be able to be convinced about Samba, but how can apache be a target? did
MS patent the idea of serving a document to a browser?

Also, about openoffice, if they tried with openoffice, they'd have to go at
staroffice as well, since openoffice is really just a clean copy of staroffice
minus some fonts and stuff.

Is it about openoffice being able to read and write office doc formats? if they
go for that one, they might find themselves back in antitrust/anti-competitive
court, I can't imagine that prospect delighting them much.



Is M$ behind Linux attacks?

[ Reply to This | # ]

They're up to something....
Authored by: Asynchronous on Tuesday, July 20 2004 @ 06:29 PM EDT
Somethings up:

Lindows to Get $20 Million from Microsoft, Will Change Company Name to Linspire
They're buying the Lindows associated domain(s).
The Link

Microsoft to pay out $75 billion to shareholders

30B in stock buyback and $3 a share onetime dividend payout.
The Link

And for SCOg... if you had a product or service, this could have been you:

... Information technology giant International Business Machines Corp. signed a 7-year contract to provide outsourcing IT services to the British government...

It's estimated worth about $1.5 billion.
The Link

[ Reply to This | # ]

In case anybody wonders
Authored by: inode_buddha on Tuesday, July 20 2004 @ 08:07 PM EDT
... what HP is actually doing with OSS, they are big on High Availability and High Performance clusters. AIUI, they do work with OSDL. Their main project seems to be OpenSSI (single-system-image), which seems to be similar to their own Non-Stop and Superdome offerings. This seems to put them in direct competition with IBM and Sun, at the high end of the market. A quote from their website here:


The OpenSSI project leverages both HP's NonStop Clusters for Unixware technology and other open source technology to provide a full, highly available SSI environment for Linux. Goals for OpenSSI Clusters include availability, scalability and manageability, built from standard servers. Technology pieces include: membership, single root and single init, cluster filesystems and DLM, single process space and process migration, load leveling, single and shared IPC space, device space and networking space, and single management space. The OpenSSI Clustering project leverages the Cluster Infrastructure (CI) for Linux project.

The project summary page is located here.

License [Top]

The OpenSSI code is released under the GNU General Public Licence (GPL), version 2. This is the same license used by the Linux kernel."

Anyone else notice the license terms? Now I have to wonder, in light of this, how is it that SCO can say that HP is OK with them? Surely, this sort of thing is a major contribution to Linux in the enterprise; didb't SCO have some sort of beef with that?

"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

  • SCO's targetting - Authored by: Anonymous on Wednesday, July 21 2004 @ 02:39 AM EDT
Keeping an Eye on Microsoft
Authored by: Anonymous on Wednesday, July 21 2004 @ 02:27 AM EDT
Why? Why worry or keep an eye on Microsoft? There is no point to it.

People, that is how you lose. Reacting to what someone else is doing, in this
case, reacting to M$.

Make M$ react to FOSS. That is how you win. Take the initiative away from your
oponent. Make them react to you (us or FOSS).


[ Reply to This | # ]

Keeping an Eye on Microsoft
Authored by: Anonymous on Wednesday, July 21 2004 @ 08:29 AM EDT
If microsoft tries to sue a linux vendor, the OSDN wont
stand for it. IBM have many more patents than microsoft do
and could probably put MS out of business if they felt
like it. AMD are a member of OSDN, maybe they would
withdraw their support from windows. Microsoft wouldn't
have a leg to stand on if they pissed the OSDN off.

[ Reply to This | # ]

Any news from the DC case?
Authored by: Anonymous on Wednesday, July 21 2004 @ 10:45 AM EDT
Any report from the DC case hearing? No news is making me think it might have
been a win for SCO...

[ Reply to This | # ]

Great Slashdot post
Authored by: Anonymous on Wednesday, July 21 2004 @ 10:47 AM EDT
Yeah, there was actually a good post on Slashdot. Read up.


What is the *real* motivation?

I used to think that way too, before "I made $10 million bucks and all I
got was this crummy t-shirt."

Seriously. Built an early ISP. Sold it for a ton of money. Raised an additional
$20 million to chase UUNET and PSI's coat-tails. Had a neutral broker in the
whole deal steal the money and the company. His attorneys stalled everyone out
long enough to get money to offshore banks. We all won the suits, and never saw
a dime. Company was long dead by the time the court system got done.

What I didn't understand at the time was that people like this know how to make
money going down. Study what they call penny stock companies (ala bulletin board
stocks/pink sheets). You can run one of these that does absolutely nothing,
never files SEC documents, and make a nice income. Here's the middle item of the
underwear gnomes strategy:

1. Incorporate a dummy privately trading C corporation which you and your
friends own.
2. Use your public bulletin board company to acquire the dummy company. Claim
the dummy company has some mystical super secret technology, or better yet, a
patent claim against someone like, Priceline, Ebay, etc. When you buy
it, it not only loads you and your friends up with more shares of stock (you buy
it with the public company stock, and if you're smart, you do much of this w/
registered stock you can immediately dump), but it puts a bunch of press
releases out about the event and gets half of the stock buying market going in a
feeding frenzy buying your public stock.
3. Dump a bunch of your newly accumulated shares. Ride the stock price down to

Repeat steps 1-3 over and over. Oh, when creditors come, make sure you drive the
price to zero again (this makes it worthless for them to come after you and even
keeps them from pushing involuntary bankruptcy which would take over your
company). Claim you were an innocent investor who lost millions too. If pressed
on where financial documents are, make sure you had hired some stupid kids and
promoted them to CEO by promosing them multi million dollar paychecks. Have them
sign all the IRS and state revenue department documents, but don't ever let them
actually have control of the bank accounts. This sends the IRS and SEC after
them and will stick them with tax obligations for decades. During this lying low
time, acquire a few of your dummy companies and load back up on stock.

Sound far fetched? It happens every single day. The SEC told us it could not do
anything about these and could only worry about the big Worldcom sized matters
because they were "underfunded and overworked." The rest of the story
is that it takes financial and political clout to get the SEC to investigate.
Common folks don't matter.

So is there any wonder that the names behind SCO include power hitters from both
parties and much of Utah's power base? Just another way of taking money from the
lower classes...

[ Reply to This | # ]

OT: UN uses OSS to fight hunger
Authored by: Tim Ransom on Wednesday, July 21 2004 @ 11:05 AM EDT

Thanks again,

[ Reply to This | # ]

OT: date and time of the DC hearing?
Authored by: Anonymous on Wednesday, July 21 2004 @ 11:19 AM EDT
Can anyone tell me what the date and time is of today's Daimler Chrysler
hearing, in GMT if possible?


[ Reply to This | # ]

OT: FUD alert! Level: ankle
Authored by: Tim Ransom on Wednesday, July 21 2004 @ 11:21 AM EDT
Some guy by the name of Martin Butler typed up some truly lame FUD while watching the Simple Life, and his clients published it! Great job, Martin! Here's a sample of his penetrating insight:

'MySQL has almost singlehandedly reignited interest in the database market. But the first thing to note is that open source does not equal free in this case.'


Thanks again,

[ Reply to This | # ]

OT: SCO chart = falling rock, 11:20am
Authored by: Anonymous on Wednesday, July 21 2004 @ 11:52 AM EDT

[ Reply to This | # ]

Submarine Patent Ahoy!!
Authored by: Asynchronous on Wednesday, July 21 2004 @ 12:14 PM EDT
Even though it's happening to Apple and Microsoft, that doesn't make it right.
London-based BTG PLC announced today that it has filed suit against Microsoft Corp. and Apple Computer Inc. for allegedly infringing a patent that covers Web-enabled software update technologies.


The lawsuit charges Microsoft and Apple with infringement of U.S. Patent No. 6,557,054, alleging that their operating systems, as well as Microsoft Office products, incorporate the patented technologies.


The Link

[ Reply to This | # ]

Microsoft diividend - but what about software/
Authored by: tz on Wednesday, July 21 2004 @ 03:54 PM EDT
MSFT spiked yesterday. Reading the articles, I saw nothing about new revenues,
products, or things that will beef up earnings. Maybe their forced-march
upgrade policy is failing. Long-delayed-horn won't be forcing another cycle for
a while.

I wonder if this is a final pump-and-dump. Declare a 10% one-time dividend to
keep the price up. Announce a buyback while the last rats leaving the ship cash
out their options (so there will be no dilution). Use the good cheer to
increase insider sales. Keep a few billion shares around so things don't look
too bad (and maybe short against the box like they did when they claimed to
invest in Apple).

Dot-com like financial gimmicry (though done much better) - I wonder if Linux is
having a bigger effect than people imagine.

[ Reply to This | # ]

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