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MS Is a Big Fat Patent FUDster
Thursday, November 18 2004 @ 10:49 PM EST

Now, according to Mary Jo Foley, Mr. Ballmer claims his threats were taken "out of context". No, more ridiculously, he clarifies that he never actually said that *Microsoft* "planned to sue Linux vendors or customers over the alleged violations."

Trust me. I believe we caught his drift just fine, just as we would if a mobster mentioned very politely what a shame it would be if anything were to happen to our lovely restaurant, if we don't purchase his offered "protection". The part that matters is Ballmer confirms that he did indeed say that countries wishing to join the WTO will find "somebody" will come after them for infringement if they switch to Linux.

I highly recommend that you read Andrew Orlowski's complete article on the Ballmer statements, because Orlowski's view is that Microsoft's weapon of choice is not patent infringement lawsuits, but rather the *threat* of them, or to put it plainly, FUD.

Here's a snip to whet your appetite:

"Let's remember too that many software patents are thrown out by the judge. . . . The explosion of patent filing activity at Microsoft doesn't necessarily indicate an explosion of creativity; and many may be even more fatuous than the FAT patent. For example today (thanks TheoDP) Microsoft has applied to patent the IS NOT operator.

"And in any case, as Dan Ravicher noted here, the winner doesn't keep all. 'It's rare for a patent holder to get an injunction, especially against a smaller competitor, just because of anti competitive terms.'

"Thirdly, a frontal assault would likely generate huge retaliation from IBM, which needs Linux - a nice earner for its consultancy and integration services division. IBM has deep pockets and an even deeper patent portfolio, which Microsoft's Marshall Phelps knows very well. . . .

"So like Mutually Assured Destruction, the true value of Microsoft's patent arsenal lies in the threat of their use, not their actual use. In any case, what Microsoft seems to be counting on is that the momentum behind the GPL will falter as companies become wary of deploying it."

I think it would be hard to find a more stupid patent than that one, despite there being such stiff competition. Retaliation wouldn't be just from IBM. We have Novell standing up and declaring they will do the same. Jack Messman in today's Q4 2004 earnings call, which you can listen to in its entirety here, reiterated their absolute intention to protect Linux from attack. This is not a one-sided Perils of Pauline scenario, which is probably why Mr. Ballmer immediately wished to clarify his statement, so they wouldn't have to put their money where their mouth is, at least not yet.

According to Foley, Microsoft's salesmen are already threatening companies thinking of switching to GNU/Linux:

"But in some cases, Microsoft is using patents as a scare tactic, one source claimed. Out in the field, 'Microsoft is telling customers that there are between 26 and 28 (Microsoft) patents that conflict with Linux,' said one software executive who requested anonymity. And Microsoft sales folk are using this factoid — whether accurate or not — to dissuade key customers from going open-source, he said."

So when Mr. Ballmer claims he was merely quoting the OSRM patent study, not threatening anyone, I call FUD. IBM has far more patents than Microsoft, and they have publicly said they will never use them against Linux. Microsoft could do the same, and it should, if it isn't threatening anybody. Otherwise, I believe we are free to assume they will have to bring a patent infringement lawsuit, because with respects to those 26 or 28 patents, no one can sue on their behalf. So, if they do bring a lawsuit, what happens then? Is the FOSS ship headed for a watery grave?

Don't be ridiculous. If you wish to read some truth on this subject instead of just whirling about in MS's FUDmobile, I suggest you read this O'Reilly interview with Dan Ravicher, the attorney who did the patent study. The interviewer, chromatic, was able to discern the real finding of the study:

"The most important finding is that Linux infringes on zero patents that have survived reviews in court. The 283 patents that the kernel could infringe have all gone unchallenged so far. There is a chance that a court could find the patents invalid -- so the conclusion that there are 283 ways in which patent holders could bring suit against kernel developers, users, and distributors is flawed."[emphasis added]

That means, folks, that unless Microsoft brings a patent infringement lawsuit, it has no patent infringement claims against Linux. The patents mean as much as SCO's copyright registrations, namely pretty much nothing. It takes a court to make them stick. So, if they wish to threaten, they will have to follow through, and until they do, Linux isn't infringing a thing. As we all know, some mighty stupid patents have issued, and some of them, including Microsoft's FAT patent, end up falling under court review. It's not rare, because the US patent system isn't working properly, and the whole world knows it. That was the point of the study, actually.

Microsoft, in contrast, is regularly sued for infringement, as well as for antitrust violations, and has been spreading its Monopoly Money around all over the place trying to make lawsuits against it go away. It is regularly sued for IP infringement. The fact that they pay rather than let the thing go to trial doesn't tell you that they think they are innocent, does it? In contrast, there has never once been a patent infringement lawsuit against Linux. As for Microsoft's offer of indemnification, I suggest you read Frank Hayes' opinion piece, "It's Your Money".

In response to Ballmer's comments today that Linux "violates more than 228 patents", Dan Ravicher, Lead Patent Counsel for OSRM, had the following comments:

"There are no patents that are only infringed by free/open source software, because patents are infringed by specific structure that accomplishes specific functionality. Patents don't care how the infringing article is distributed, be it under an open source license, a proprietary license, or not at all. Whether and how software is distributed makes no difference. The bottom line, then, is that there's no reason to believe that Windows, Unix-based or any other functionally similar operating system has any less risk of infringing patents than GNU/Linux does.

"Ballmer makes a very bold statement by saying 'Linux infringes hundreds of patents', because that is extremely different from saying 'Linux potentially infringes X patents,' as the requirement to prove infringement is much stiffer and more difficult than the requirement to simply file a case claiming infringement. As the SCO saga shows, filing a case based on an allegation is one thing, proving the merits of the allegation in court is something completely different.

"The point of the OSRM study, which found that Linux potentially infringes 283 un-tested patents, while not infringing a single court-validated patent, was to (i) confirm what everyone in the open source community already knew, that open source software is not immune from the perils of the patent system, where common software can be potentially infringed by hundreds of patents while most pharmaceuticals are only potentially infringed by a couple, (ii) reinforce the fact that the patent system provides patent holders with means to harass open source software with claims of patent infringement, just as they harass proprietary software, if they want to, and (iii) show that although the patent system may negatively impact open source software, it won't have a larger negative impact on open source software than it already has on proprietary software.

"In the end, not a single open source software program has ever been sued for patent infringement, much less be found to infringe, while proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently. For examples we have Eolas' patent being infringed by Windows and Kodak's patent being infringed by Java. If one believes the proof is in the pudding, that stark contrast shows how open source software has much less to worry about from patents than proprietary software, although the system is still such that there are issues for everyone to be concerned about."


MS Is a Big Fat Patent FUDster | 359 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Dear Steve
Authored by: Anonymous on Friday, November 19 2004 @ 12:27 AM EST

Date: November 18, 2004

TO: Steve Ballmer, M$

FROM: Joint Committee of Everylinuxdistributor and

RE: Infringement of M$ Patents

Dear Steve:

It has come to our attention that you have been suggesting that Linux uses
patents that belong to M$. Apparently you are upset about your own suggestion
and foresee a day of reconing when Users and Distributors of Linux will be held
to account for this infringement by voluntary payments or court action.

Please be assured that we meant no offense. No one intentionally uses any of
your patents. Indeed the appearance of infringement probably arises from the
fact that some software patents are vague, or obvious and cover simplistic
hardware procedures. Linux has been carefully created and is open.

In order to clear the air, we ask you to tell us which of your patents are being
infringed. Please tell us specifically about the patents and then tell us
specifically about what code in Linux infringes upon the respective patents.
This should be a simple task since Linux is open and the source code is freely

By the way, Linux has many copyrights. In order to avoid confusion we ask that
you show us the code in your products that utilize your infringed patents. We
certainly wouldn't want to have any copyright conflicts either.

Certainly we can agree that any unquestionable patents should be respected. We
will remove offending code immediately and spare you further pain.

We realize that complying with this request may take you a few days. However,
our unpleasant lawyers insist that we say that until you comply with this
request, we can not be considered to have done you any harm. They also say that
your idle threats without specifics is harmful to us. We ask that out of a sense
of fair play, you forebear with your monopoly power, and accuse us no longer
without specifics.*

Good luck with the next patch. Regards to Bill.



*Or as they say in greek, "PUOSU." Rough translation: put up or shut

[ Reply to This | # ]

Corrections, please.
Authored by: ankylosaurus on Friday, November 19 2004 @ 12:27 AM EST
Obviously, MS likes to be understood correctly - or what it perceives to be

The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

OT here
Authored by: jim Reiter on Friday, November 19 2004 @ 12:29 AM EST
OT here

[ Reply to This | # ]

Off-topic threads here please.
Authored by: ankylosaurus on Friday, November 19 2004 @ 12:30 AM EST
And embed URLS with the HTTP notation:

<a href=""> </a>


The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Authored by: Anonymous on Friday, November 19 2004 @ 12:36 AM EST
In an interview by Jem Matzan over at NewsForge, Scott McNealy has an interesting answer to an interesting question:
Arguably the most important question I asked Scott McNealy was, "What proprietary code had to be taken out of Solaris in preparation for open sourcing it?" McNealy responded by saying that the process of open sourcing Solaris actually started five years ago. "There were hundreds of encumbrances to open sourcing Solaris. Some of them we had to buy out, others we had to eliminate. We had to pay SCO more money so we could open the code -- I couldn't say anything about that at the time, but now I can tell you that we paid them that license fee to expand our rights to the code," he said, referring to the February 2003 multi-million-dollar purchase of expanded Unix SVR4 license rights from the SCO Group.


[ Reply to This | # ]

Big fat hairy troll
Authored by: Anonymous on Friday, November 19 2004 @ 12:44 AM EST
Actually, I pretty much had read what Ballmer said as merely twisting the
already published study to spin it M$ style, not making any direct threat.

Not that I don't think M$ wouldn't try to litigate Linux out of existence if
they thought they saw a chance, just that I don't think even Ballmer is stupid
enough to broadcast their intention that far and wide in advance.

No, when M$ finally decides the time is right they will serve the papers on
somebody out of the blue. It won't be IBM, because IBM can and will fight back.
It will be somebody big enough to cause a splash, financially hurting enough to
settle out of court (think sealed), and integrated in the community enough to
upset a few applecarts.

But I don't think Ravicher is entirely above a little spin himself. He has an
interest in keeping the issue boiling, and even though he smooths that over,
talking about how no tested patent has been infringed, the untested patent of
Damocles is still implied, hanging overhead, cleverly hidden amongst 227 mostly
harmless ones.

[ Reply to This | # ]

A patent on the "is not" operator
Authored by: Philip Stephens on Friday, November 19 2004 @ 01:40 AM EST
I read this patent application, and I am absolutely flabergastered--a patent on
an operator that determines if two variables point to the same memory

I mean, EVERY high level language that supports references or pointers to
variables can do this. In C, it's the != operator applied to two pointer

It really angers me to think that companies like Microsoft are applying for
patents on clearly bogus "inventions". There is so much prior art for
stuff like this that if the patent office were to award this patent, it would be
proof positive that they are completely failing to do even a modicum of research
before handing out patents. Instead, they expect companies affected by such
patents to spend millions of dollars getting the patents invalided.

It's unbelievable!

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: micheal on Friday, November 19 2004 @ 01:51 AM EST
Just as the SCO VS IBM lawsuit seems to have done a lot to promote linux these
stupid M$ tricks may help to derail patents on software. (I am referring to both
the patent threats and the isNot patent.)

LeRoy -
What a wonderful day.

[ Reply to This | # ]

OSRM Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 01:55 AM EST
OSRM Is a Big Fat Patent FUDster.

The OSRM offers insurance "protection" against lawsuits against

In order to sell it's snake oil, the OSRM has to scare people into worrying
about lawsuits. So it comes up with mysterious statements indicating that Linux
may have violated over 200 patents. But then again - Linux may not have. Then
again, Linux might have . . .

Keeping the information upon which it is making it's conclusions closed source.

Spreading Fear, Uncertainty and Doubt about Linux.

Particularly - Uncertainty.

OSRM is playing both sides of this particular fence.

Trying to hook the fish - Linux users - then playing with it's catch for a while
before reeling it in.

When it gets caught, the people of OSRM go straight for the ad hominem argument
- they label the people who catch it as being "FUDsters" or

Demanding apologies.

But in reality, the OSRM is bringing all this directly upon itself.

And upon Linux.

There's a war on in OS-land.

You can't play both sides of the fence.

OSRM is playing both sides of the fence.

And no - calling anyone who disagrees with you a "Troll" doesn't cut

Not amongst adults.

Best regards,


[ Reply to This | # ]

Ballmer Speech Transcript??
Authored by: Greebo on Friday, November 19 2004 @ 02:01 AM EST
Does anyone have a link to a Transcript of the Ballmer speech in which he claims his comment was taken out of context?

I would be very interested to read the whole thing and see the context for myself.


PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 02:33 AM EST
Call me paranoid, but I checked the local New Zealand registry ( and it seems MS have been registering a few patents here in the last few months. I can't view the details, but some of the titles concern me.

"Design of application programming interfaces(APIs)"

I sent my boss a heads-up that MS may well start "warning" organizations in NZ about IP infingement.

NZ is small country and, overall, not stupid. But no-one here could challenge MS and survive.


[ Reply to This | # ]

"Perils of Pauline scenario"?
Authored by: Anonymous on Friday, November 19 2004 @ 05:27 AM EST
This one went so far above my head that it left a contrail.

Could someone please take the time to explain a poor reader to what a "Perils of Pauline" scenario is? Feel free to lecture me on how regrettably unschooled I am. :-)

[ Reply to This | # ]

A Huge Disturbance in The FUD
Authored by: Simon G Best on Friday, November 19 2004 @ 06:01 AM EST

I highly recommend that you read Andrew Orlowski's complete article on the Ballmer statements, because Orlowski's view is that Microsoft's weapon of choice is not patent infringement lawsuits, but rather the *threat* of them, or to put it plainly, FUD.

I was thinking much the same thing yesterday, about the FUD. (I didn't know about Orlowski's article, and haven't read it.)

Yesterday, after reading your article about Ballmer's latest threats, I thought, 'It's too easy. It's as if they want us to draw conclusions that they're gearing up for a patent war.' But why would they encourage us to warn the world of Microsoft's impending patent war against FOSS? FUD!!!

Then it felt very much like they're actually trying to play us FOSSers, getting us to effectively spread and amplify their FUD for them. Persuade us that they're going to launch a patent war against FOSS, and we'll eagerly make a big, big noise about how FOSS is going to get attacked in a patent blitz.

(It also reminded me of that bit in Episode IV ('A New Hope') where Princess Leia says that their escape from the Death Star was too easy, that the Empire must have let them escape.)

Indeed, one of the advantages (for Darth Ballmer and the Microsoft Empire) of not actually starting a hot patent war is that the threat of such a war can loom relatively indefinitely.

We must not underestimate the Dark Side. If they can predict how we'll react to their FUD, they can turn that for their own purposes (such as getting us to amplify and further spread their FUD for them). We need to guard against merely reacting, we need to avoid being so predictable. What we need to do, collectively, is to actively defend our freedom, and actively pursue the abolition of software patents (both direct and indirect kinds (the indirect kinds taking the guise of patents for 'computer-implemented inventions' (at least here in the EU))).

It would also be a good idea to make 2005 the year of FOSS on the desktop, perhaps starting with a blitz of TheOpenCD to friends and family this Christmas. If, collectively, we all make a big push to offer liberation to those we know, even just a 10% success rate would more than double the number of FOSS desktops - and only about five or so doublings are needed to reach saturation!

But as for the patent question - well, that's going to have to involve dealing with politicians. Fortunately, we've already seen that it can work in the EU (though it's far from over), so there is hope.

Open Source - open and honest? Not while the political denial continues.

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 06:01 AM EST
Say it and forget it.

The article at the web site is unavailable, however, this
reminded me about another FUD case.

It is funny that something similar happened with another FUD firing from
Steve Ballmer.

A while ago he said that the most common format of music on an iPod was
stolen, then later he said that he did not know what he said but it was bad.

In this case, he was trying to convice record labels and movie studios that MS
had DRM and pretend that Apple did not have DRM which they actually do.


So it is like tell it to a 100 people, 20 of them being key audience, then
retract what you said to 50 (other people).

Fortunately, the people he is saying this to, can think, and recognize threats.


[ Reply to This | # ]

Authored by: dodger on Friday, November 19 2004 @ 06:36 AM EST
The Ballmer/Microsoft strategy is to spread FUD by threatening linux users. The
'oh, I didn't really say that' is meant to provide press to the contrary that
Microsoft can show to, say, the European Commission, who are looking at the
appeal of the huge sanctions against the monopolist, and might be influenced by
the FUD press. Microsoft can safely say, 'oh, we were misunderstood; we really
didn't say that; look at what Steve said the very next day for

The FUD relies on scaring people. The original statement by Balmer was designed
to frighten people into thinking that there are patent infringements in Linux -
was it 286? to be specific. However, Microsoft will NEVER BE SPECIFIC about
these infringements, since the game of the BULLY is to frighten the

A BULLY resorts to fear tactics because he has an inferior product. The product
cannot speak for itself (blue screen, blue screen, blue screen). Actually, I
believe that the European Commission should be interested in the original
statement that Ballmer made as PROOF that the market place is stifled by a
MONOPOLIST with inferior products who is now resorting to FUD as the 'method of
choice' to fight Linux and the other competition.

[ Reply to This | # ]

Free Patents
Authored by: Anonymous on Friday, November 19 2004 @ 06:51 AM EST
For some the GPL is an emotional issue, others find it useful, some question its
value or ethics. However as far as I can gather, almost everyone agrees it is
rather neat!

Does anything similar exist for software patents, independent of copyrighted

A way that a patent filed for purely defensive measures can be opened up for
free use subject to license conditions that prevent the user of techniques given
in that patent using their own software patents for non-defensive purposes.

I expect if such existed we would have heard about it here but I'm interested as
to whether this is a total non starter for some legal or other reasons or
whether we are simply waiting for a neat creative leap.

[ Reply to This | # ]

Microsoft motive thread
Authored by: MadScientist on Friday, November 19 2004 @ 06:58 AM EST
History notes:

Windows 3.0 more than doubled Microsoft's desktop license income from $28 for
DOS to ~$70 a seat.

The release and sucess of Windows 95 saw competitors such as IBM eliminated from
the OS market and saw Apple shrunk to a third of its earlier. It also resulted
in impressive annual leaps on the balance sheet.


HP memo

In a June 2002 memo written by Gary Campbell (a senior executive at Hewlett
Packard) to several persons including HP's software chiefs Peter Blackmore and
Nora Denzel, and HP's Chief Tech Officer Shane Robinson.

"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".

He warned that Samba, Wine, KDE, Gnome, Apache, Sendmail, and the Linux kernel
itself are not covered by HP's cross-licensing agreements and worried that HP's
cross-licensing agreement did not protect the company from patent litigation on
IP filed after June 2001.

The memo has been confirmed as being genuine by HP.


The effection of competion:

Microsoft reduced the price for Windows from US $600 to $37 in Thialand some
time ago. It currently retails there at $26 a pop. Pirate copies are even

In China, Linux is presently (2004) considered *more* expensive than Windows
because Linux (Dragon Linux) comes on *three* CDs rather than one. Needless to
say this cost saving applies only to the pirated copy of Windows.

There are smaller versions of Linux than Dragon's 3 CDs worth. Maybe Knoppik or
similar should open a China sales office? Definitly looks like a market
opertunity here.


Old news:

The Israeli government's decided to suspend Microsoft purchases back in October

Whitehall's (the UK Government) has decided to trial Linux/OpenOffice on as many
as 500,000 desktops.


Finally from Balmer's speech

"We've done that [shown the Windows source code] in Russia"

Heaven help us! No wonder there are so many virii coming from Russia et al. Any
liability here perchance?


"Open source software does not today respect the intellectual property
rights of any intellectual property holder."

False statement. Much of open source is based the GPL which insists upon respect
for the 'intellectual property rights' of the holder. Contrast this MS's
approach: compression software, BSD code, the basis of the MS DOS itself, the
Timeline and Eolas patents.

The list goes on and on.


"Some day, for all countries that are entering WTO (World Trade
Organization), somebody will come and look for money to pay for the patent
rights for that intellectual property. So the licensing costs are less clear
than people think today."

*Bad* politics and worse economics. The WTO deals with disputes between
countries not private (or public) companies. If MS wants to enforce its IP
rights it can take them to the courts of the countries it wants to. I would not
hold my breath waiting for a sucess there but they can try. Whats the betting if
these countries do decide to join the WTO they wont negociate an opt out, a
reduction in patent royalities or a calcellation of all earlier incured patent
revenue simply because they did not recognise it at earlier. For the record the
EU does not recognise SW patents and are in the WTO so unless Blamer thinks he
can block these countries entry by himself (doubts++) there is no basis in fact
for these statements.

Secondly Balmer ingnores the economic value of use now. A doller today is worth
more than a doller in a years time (Except in a country undergoing deflation -
think Japan here. The first recorded negative interest rates have involved the
yen - the Japanese currency.)

Think of the master in the Bible who lent his servents money and expected them
to have made more when he returned. Right now most of these countries cant
afford the US$600 MS wanted to charge. Linux is given them a chance to get into
the computor world much like the IBM clones did a generation ago to the
developed world.


"if ... Linux works best sometimes you should use it"

Amazing!! Coming from the CEO of MS at a speach to Government heads.

[ Reply to This | # ]

microsoft-watch slashdotted?
Authored by: Anonymous on Friday, November 19 2004 @ 07:15 AM EST
I'm trying to read the article but get this message:
The include
osoft,00.asp' was not found.

What is funny is that I misread it 'display industry brains of Ziff Davis Senior
IT and Microsoft Windows not found.'

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 09:00 AM EST

As always, thank you for being here. Goodness only knows what we'd do
without you.

[ Reply to This | # ]

Ballmer Behind Bars
Authored by: Anonymous on Friday, November 19 2004 @ 09:02 AM EST

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: fieldsls on Friday, November 19 2004 @ 09:09 AM EST
Gates and Balmer become The Uncredibles in this very appropriate The Joy of Tech cartoon.

[ Reply to This | # ]

Maybe Steve Ballmer is fearful of the security of his job?
Authored by: clark_kent on Friday, November 19 2004 @ 09:38 AM EST
You know, when a "free" or "nearly free" set of software
acts more reliably and securely than software created with a 7 billion dollar R
& D yearly budget, one has to wonder if Steve is running out of lies to tell
people when the Truth is becoming so overwhelming. Maybe people are catching on
to his Snake Oil sales tactics.

Steve and Microsoft are set in their ways. It would be hard for a company that
size or maybe even one person to do something for so long in a certain way, then
discover that in order to stay in business, you should have been doing the the
"Righteous Way" in the first place, but now you can't change fast
enough to cover your butte?

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 10:25 AM EST
[...] Orlowski's view is that Microsoft's weapon of choice is not patent infringement lawsuits, but rather the *threat* of them [...]

Rather ironic, then, that Microsoft, whose reputation we all know, presumes to speak on behalf of the WTO, whose main charter I believe is the eradication of barriers to trade.

I wonder if the WTO could be persuaded to agree that the US patent system, as it currently stands, can be regarded as such a barrier, if a company like Microsoft can use the threat of patent litigation to stifle competition in other parts of the world?

[ Reply to This | # ]

PJ! This one was a cheap shot
Authored by: Anonymous on Friday, November 19 2004 @ 10:30 AM EST
"The fact that they pay rather than let the thing go to trial doesn't tell
you that they think they are innocent, does it?"


I agree with most of what you wrote in your article (and I hate MS as much as
the next guy) but this line is a cheap shot. Obviously MS knows that the
"egg-on-face" of a trial, combined with the costs of the trial and the
risk of high damages if they lose, would be worse than the settlement money they
pay out. And *even if they are innocent* they might still lose in court. So
its unfair to assume just because they settled, that they were guilty.

IIRC, Kodak recently extorted a pile of money out of Sun. Didn't Sun settle
that case (even though we as onlookers thought they could have got those patents
invalidated)? A settlement (even by MS) is not really an admission of guilt.

Given MS's conduct in the past, whether they are innocent or not probably has no
bearing whatsoever on the way they handle litigation. Contrast this with e.g.
the federal gov't here in Canada, who will either settle a case or fight it
tooth and nail, mostly depending on whether they believe they are at fault or

[ Reply to This | # ]

Trade Libel?
Authored by: tz on Friday, November 19 2004 @ 10:35 AM EST
IANAL and I don't know about patent v.s. copyrignt.

I think Linux violates as many (valid) MS Patents as it has copied lines of SCO
Unix Sys V 5.

When you try to clarify FUD, you get only Fog, Unclarity, and Darkness.

But Ballmer has basically claimed that Linux is illegal - not much differently
than SCO's copyright claims. Of course they would say they have "good
faith" (I keep thinking of two toddlers alternately chanting

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: Anonymous on Friday, November 19 2004 @ 11:01 AM EST
And I believe that it will remain FUD. Consider, should M$ begin an action and
loose their FUD would evaporate. The difficulty in prevailing with limited or
inappropriate patent would greatly jeopardize their current FUD war, and could
completely remove required weapons from their arsenal. One only has to look at
Ballmer's past of "shooting off" his mouth before securely engaging
brain (wait, that could be a misconception on my part) to see that that is his
history. He may accomplish his immediate FUD goal, but makes himself look silly
by anyone not directly threatened. Finally, I believe M$'s litigation history
is very pathetic. How many other companies begin a lawsuit (against Lindows)
and ends it by paying the defendant $20 Million.

[ Reply to This | # ]

MS Is a Big Fat Patent FUDster
Authored by: blacklight on Friday, November 19 2004 @ 11:10 AM EST
"In the end, not a single open source software program has ever been sued
for patent infringement ..."

Bruce Perens reported that some Open Source developers were forced to turn over
their technologies to unscrupulous parties who were threatening to sue them for
patent infringement, simply because those developoers did not have the financial
means to defend themselves in court. And as for being sued for patent
infringement, there is always a first time for everything: I have never been
either mutilated, murdered or taken to court either - It doesn't mean that it
can't happen going forward.

"... much less be found to infringe, while proprietary software, like
Windows, is sued and found guilty of patent infringement quite frequently. For
examples we have Eolas' patent being infringed by Windows and Kodak's patent
being infringed by Java."

The Eolas patent was questionable, and so was Kodak's claim. The Sun could have
chosen to fight but preferred not to - too bad.

"If one believes the proof is in the pudding, that stark contrast shows how
open source software has much less to worry about from patents than proprietary
software, although the system is still such that there are issues for everyone
to be concerned about."

I disagree: Open Source has just as much to worry about software patents as
proprietary software - and it is not for nothing that the fight against software
patents in EU is so bitter. The sooner we deal effectively with software
patents, the more effectively we can either put that issue behind us or
alternatively, manage that issue so that the potential damage is minimal.

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No open source software has ever been sued for Patent infringement?
Authored by: randyflood on Friday, November 19 2004 @ 11:12 AM EST

Didn't Sco briefly make some kind of Patent infringement claims against IBM in
relation to Linux (and then have to pretty much drop them because they got
laughed out of court or something?)

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What are the responsibilities of a patent owner?
Authored by: gard on Friday, November 19 2004 @ 01:51 PM EST

  • Does the law require the patent owner to take actions to mitigate the damage once an infringement is known?

  • What if the patent owner had only heard rumors about infringement, and didn't know for sure, but didn't take any action for a couple of years? Does that adversely affect the extent of damages that the infringer may be subjected to?

  • What if the patent owner went about saying there may be infringements, without specifying if any of the owner's patents were infringed? Does the owner now have a responsibility to investigate if any of their patents are infringed, in order to mitigate further damage? Does not doing so affect the owner's legal recourses later?

  • What if the alleged infringer's product has been widely available for free scrutiny and the patent owner never took any action to investigate if any of their patents were being infringed? Does that constitute negligence/abandonment of rights/violation of "mitigation of damage" principles?


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  • MS Is a Big Fat Patent FUDster
    Authored by: Anonymous on Friday, November 19 2004 @ 02:36 PM EST
    To quote the top of the page, IANAL either...but I was
    wondering...Would it be at all possible to level a genuine
    charge of racketeering at Microsoft for this? To me it
    sounds very similar to the sort of old pitch that was used
    to get protection money.

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    Gates in Paris
    Authored by: Anonymous on Friday, November 19 2004 @ 03:29 PM EST
    Bill Gates made an agreement with UNESCO today in Paris!
    He will meet Jaques Chirac (Frech Prime Minister) tomorrow.

    It seems that M$ is busy these days!

    What can we expect to read soon?

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    We seem to have acquired a resident troll...
    Authored by: Latesigner on Friday, November 19 2004 @ 03:49 PM EST
    The SCOX board at Yahoo has a few and now we've got one.
    Leave him to PJ to delete.

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    OT: NTT DoCoMo chooses Linux
    Authored by: Anonymous on Friday, November 19 2004 @ 03:51 PM EST
    The EE Times is reporting that NTT DoCoMo, Japan's largest cellular carrier,
    will use Linux in three new 3G phones.

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    ballmer retracting
    Authored by: nerpzilla on Friday, November 19 2004 @ 05:55 PM EST
    everybody should check out Capo v Dioptics,

    fresh case from the patent fiefdom of the Court of Appeals for the Federal

    in short, ballmer's threats can give rise to a declaratory judgment cause of
    action for non-infringment of these patents. i think that's the real reason he
    is trying to back off now. someone in legal warned him that this tough talk
    could actually start the patent nuclear war they don't really want to fight.

    his speach should establish the "apprehension of litigation" needed
    for a patent declaratory action. the situation just about parallels Capo. if
    someone has the time and money and, ahem, courage, and these patents really are
    as weak as we think, we should really send ballmer a christmas card.

    a dec action would let the alleged infringer be the plaintiff, meaning no
    vouluntary dismissals, no picking on small fries to gain precedence, no heavy
    handed settlements, and, most importantly, no slack time allowing for fud.
    these threats could be adjudicated (in legal relativity) quickly.

    nothing would bring more public attention to the broken system than dragging ms,
    kicking and screaming, into court. plus, with the election over, the news cycle
    has slowed to a pace where we could get some face time on this issue.

    pubpat - i think its go time.

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    Patenting isNot????
    Authored by: wmarvel on Friday, November 19 2004 @ 07:00 PM EST
    Prior art:


    (not (eq a b))


    a != b (where a and be are pointers)

    What the hell are they thinking?

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    Software patents
    Authored by: TerjeBr on Friday, November 19 2004 @ 07:17 PM EST
    You wrote:
    Now, I'm not in favor of stupid patents, but I also think that removing the possibility of any software patents may not be the best thing. But there must be some compromise such that genuine, original, and non-obvious software inventions can be patented, hence protecting the inventor from those with big pockets whose only desire is to take the invention and leave the inventor with nothing.

    I think you are very wrong here. Software patents are harmfull in every aspect, and do not protect small companies from those with big pockets in any way. Genuine, original and nonobvious software are most likely built on a lot of less genuine and more obvious software ideas, and need more to be protected from other patents, than it needs to be protected by a patent.

    If you get such a patent it gives you no real protection against the big companies, and it stiffles the potential inovation that could be triggered by other people building on your invetion. Such further inovation would profit you more as a software developer, that the possible prfofit of having a patent. Not to speak about that is profit the society as a whole a lot more.

    If you want to read a more complex study that back up what I say, look at An Empirical Look at Software Patents.

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    • I concur - Authored by: Anonymous on Friday, November 19 2004 @ 09:08 PM EST
    MS Is a Big Fat Patent FUDster
    Authored by: Anonymous on Friday, November 19 2004 @ 08:20 PM EST
    Never get angry.
    Never make a threat.
    Reason with people.
    - Don Corleone (aka Steve Balmer)

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    Mr. Ballmer claims his threats were taken "out of context"
    Authored by: Icicle Spider on Friday, November 19 2004 @ 08:34 PM EST
    Yea, right.

    How come right before his "out-of-context" threats, Ballmer said:
    "Open source software does not today respect the intellectual property
    rights of any intellectual property holder."


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    Authored by: tredman on Friday, November 19 2004 @ 09:54 PM EST
    I've said it many times before (even on Groklaw once or twice), and I'll say it

    Most pictures I've ever seen of Steve Baldmer are of him with his mouth wide
    open. How appropriate.

    I may be misinformed, but I understand he's a pretty big guy. Guess he has to
    have a pretty big mouth to fit those feet of his.


    (feeling particularly acerbic today)

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    MS Is a Big Fat Patent FUDster
    Authored by: Lauritz on Saturday, November 20 2004 @ 01:16 PM EST
    Now it's you that is FUD'ing PJ ;)

    Claiming that there are "between 26 and 28 (Microsoft) patents that
    conflict with Linux" does not imply that Microsoft "will have to
    bring a patent infringement lawsuit". By "that conflict with
    Linux" Microsoft could mean "for which Linux represent prior
    art". :)

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    More Microsoft charm.
    Authored by: Anonymous on Sunday, November 21 2004 @ 06:31 PM EST
    So I go to I'm using
    Konqueror 3.2.2 to view the site, and the text is lined up all wrong. So I
    go to Settings -> Configure Konqueror -> Browser Identification, where
    it says Konqueror reports itself as "Mozilla/5.0 (compatible;
    Konqueror/3.2; Linux) (KHTML, like Gecko)" I uncheck "Send
    identification", reload the page and viola, suddenly the text is lined up
    properly. Go ahead Konqueror users, try it!

    So the fine folks at Microsoft are purposefully messing up their site for
    Mozilla users, and specifically those that send the browser information!
    Didn't they get caught doing this with Opera, when it caused a bit of a

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    MS Is a Big Fat Patent FUDster
    Authored by: Anonymous on Monday, November 22 2004 @ 02:55 PM EST
    Nobody raises an eye when Novell or Intertrusts use their patent portfolio to
    sue Microsoft. The software patent system is all messed up and every
    organization has to build a strong patent portfolio, if not to sue other
    corporations, then at least to use it as a threat so that others do not sue it.

    In Rome behave as Romans

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