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OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
Tuesday, May 15 2007 @ 01:01 PM EDT

Jerry Rosenthal, chief executive officer of Open Invention Network, has just issued a statement about the Fortune article, which I take as a warning to any litigious folks out there who might be thinking about litigation against Linux that any such action will have consequences. "We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create," the statement concludes.

Say, this is becoming sort of like the Cuban missile crisis. Hopefully some brainiac will figure out a neat walkaway from this brink too. Litigation is a waste of everyone's resources. But don't forget, business folks, that Red Hat offers you indemnification, so you don't have to get involved in any of this. Nor do you have to give in to bullies. I think it's also fair to say that giving in to bullies may have unfortunate consequences. First, GPLv3 is just around the corner, so what are you going to do for updates down the road? And second, if you are treated like this *before* you become a customer, how will you be treated afterward?

Here's the OIN statement:

"A recent article in Fortune Magazine raises - or more precisely, re-raises - tired, old allegations about the Linux operating system for the sole purpose of perpetuating unwarranted fear, uncertainty and doubt among current and potential Linux users and distributors.

This is not the first time that unsubstantiated claims of patent infringement have been leveled at Linux. Moreover, just as in the past, these claims are made without disclosing any evidence. It's time to stop the accusations and show the evidence. What's happening with these accusers is the equivalent of declaring four aces while being unwilling to show even a pair of deuces.

It's clear that these accusations are actually an admission of the rapid uptake of Linux in the marketplace, Linux' success in displacing legacy products of competitors and that Linux provides superior software in performance, security and stability.

Here are some facts to provide clarity around Linux and patents:

* There never has been a patent lawsuit against Linux. Never.
* Linux has excellent intellectual property vetting.
* Linux has thousands of high-quality, dedicated programmers.
* Linux creates a robust, secure computer operating environment.

In less than a year, OIN has accumulated more than 100 strategic, worldwide patents and patent applications that span Web / Internet, e-commerce, mobile and communications technologies. These patents are available to all as part of the free Linux ecosystem that OIN is creating around, and in support of Linux. We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create."

Emphasis added. In short, they will respond to any legal threat. It's part of what OIN was set up to do. It's not like the bad old days, when Microsoft could just walk onto the playground and everyone ran away in fear or burst into tears. Linux folks have been expecting this for a long time and have used the time to prepare. Nobody is crying or running away.

Update:

Microsoft blinked, according to this report from Tech.Blorge:

"We're not litigating. If we wanted to we would have done so years ago," said Horacio Gutierrez, Microsoft's VP for intellectual property and licensing, in an interview.

So, they have patents they think are infringed, but they won't litigate over them. Well, pardon my infringement and call me waiver!


  


OIN Statement: "We stand ready to leverage our IP portfolio" - Updated | 421 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Tuesday, May 15 2007 @ 01:12 PM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

marking time
Authored by: stites on Tuesday, May 15 2007 @ 01:15 PM EDT

Microsoft went through the process of threatening to sue Open Source for software patent infringement some time ago. We built the defences against such an attack at that time. That FUD campaign fizzled out with no positive results from Microsoft's viewpoint.

Then Microsoft came up with the Microsoft-Novell deal as the weapon to stop Open Source. The Microsoft-Novell deal also seems to be failing with no positive results from Microsoft's viewpoint.

Now Microsoft has gone back to threatening to sue over the 235 unnamed software patents. Microsoft already knows that this threat is ineffective and we have it defenced. I think that they will only hold this position until they can come up with a new plan, whatever that might be, to attack Open Source. Microsoft is just using Steve Ballmer's latest round of threats to mark time while the Microsoft brain trust comes up with plan C (or is it plan H?) to attack Open Source.

---------------------
Steve Stites

[ Reply to This | # ]

Off Topic
Authored by: jeevesbond on Tuesday, May 15 2007 @ 01:23 PM EDT
Off topic goes here, please make links clickable. Also, see the open letter to Groklaw from Ballmerman. It's relevant to the last three posts from PJ

[ Reply to This | # ]

Declaratory Judgment
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:33 PM EDT
PJ...

One interesting bit was in the follow-up to the Fortune article (written by the
same author, but in a separate piece) was Microsoft's "justification"
for not simply listing the patents.

According to them, doing so would invite other parties to file suits seeking
declaratory judgments of non-infringement.

An interesting legal theory--that vague allegations of patent infringement such
as these don't give rise to an "active case or controversy", but that
enumeration of specific patent numbers would. We all know that the Supreme
Court in a recent case (the name of which escapes me) held that one can
simultaneously seek a declaratory judgment of non-infringement while licensing
the patents in question.

Perhaps some more legal analysis, from Marbux or other legal analysts who post
here, is in order. A review of declaratory judgments--what are the potential
outcomes, when they may be filed, etc. The coverage of the SCO cases has dealt
with them in the copyright context; the patent context presumably has its own
case law. In particular, can a declaratory judgment be used to force MS to
identify patents with certainty (and/or perform discovery on the analysis of
what the 235 patents are), or could Microsoft simply respond by claiming that it
cannot fairly respond to a request for a declaratory judgement that isn't
specific?

IANAL, and I'd love to read some good analysis by someone who is, rather than
just the soundbites replayed in the media.

[ Reply to This | # ]

OIN Statement: "We stand ready to leverage our IP portfolio"
Authored by: PolR on Tuesday, May 15 2007 @ 01:38 PM EDT
I posted this under OT of the previous article, but I believe it really belongs
here.

OIN is interesting in that they have not signed any patent deals with anyone.
Even if a Linux friendly corporation is neutered with a patent deal, they still
have a way to intervene if they want. The said corporation may contribute
patents and money to OIN.

So then strength of OIN is not just about the 100 patents they own, it is also
about the patents they may be donated at a drop of a hat if need be. Since there
is no telling which patent can be donated when and by whom, Microsoft cannot
trust their patent agreement to be effective to shield them from countersuits.

It starts to sound like even if Microsoft have to sue and would like to sue,
they can't. If they do, not only their chances to succeed are dim but there will
be so much wreckage, the patent system will never be the same afterwards.
Legislators will have no choice but to do something to stop this kind of patent
abuses.

[ Reply to This | # ]

OIN Statement: "We stand ready to leverage our IP portfolio"
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:38 PM EDT
The release seems unclear...does this mean that any of the members can view
OIN as the equivalent of their own defensive patent portfolio? Or just that
OIN is just a cross license among members?

Their faq implies the latter:

"Open Invention Network’s mission is to further software innovation by
acquiring patents to be used for cross-licensing purposes to defend the
Linux System, as well as make them available to support Linux by licensing
them on a royalty-free basis."

The other question is whether the contributing corporations still retain rights

to the patents contributed to OIN? And what happens if OIN dissolves?

In any case, as I stated earlier, IMHO this isn't a play for the court room but

the board room and a potential attempt to fork Linux on a corporate Linux
(using GPL v2) and FSF Linux using GPL v3.

Vinea

[ Reply to This | # ]

I love it
Authored by: ppentz on Tuesday, May 15 2007 @ 01:45 PM EDT
You can hear the anger in the statement. M$ has pissed off the community which
can only have dire consequences for M$ (see SCO). No one likes being threatened
by bullies, and no one likes working with bullies, let alone purchasing their
products. I will never again purchase another M$ product.

[ Reply to This | # ]

Plain old FUD?
Authored by: ajc on Tuesday, May 15 2007 @ 02:02 PM EDT
Actually, if Microsoft intends to merely continue the sabre-rattling without
actually filing any lawsuits, it's pretty good news. History has shown that
even though Microsoft knows that FUD doesn't really work against open source,
they continue to fall back on FUD as their old standby when they can't think of
anything else to do.

[ Reply to This | # ]

Diplomacy?
Authored by: jplatt39 on Tuesday, May 15 2007 @ 02:17 PM EDT
> Say, this is becoming sort of like the Cuban missile
> crisis. Hopefully some brainiac will figure out a neat
> walkaway from this brink too.

I don't think it will happen. For one thing I don't believe the mutually
assured destruction of that crisis is an outcome--M$ can blast the United States
out of technological prowess if it succeeds but it can't impact the part of the
world which doesn't recognize patents on software.

For another, while it's certainly and open question as to whether M$ can pull it
off, they are notoriously unreceptive to ideas which didn't begin in their
organization. A Microsoft brainiac is unlikely to keep his her or its job long
enough to work something out and any other brainiac will just be ignored.

We should exactly forget about peace accords.

[ Reply to This | # ]

The papwerok mountain
Authored by: Anonymous on Tuesday, May 15 2007 @ 02:19 PM EDT
I can't help imagining the huge pile of paperwork a judge would have if they
were to sue.
There would be hundreds of amicus briefs (if that's the correct one i'm
reffering to, friends of the court briefs)
It would have to dwarf anything that currently gone before in the world of
patents.

[ Reply to This | # ]

Gotterdammerung...
Authored by: Anonymous on Tuesday, May 15 2007 @ 03:27 PM EDT
the artists are warming up now for the final part of the ring cycle...

[ Reply to This | # ]

Again with conflating GPL3 and Linux!
Authored by: Anonymous on Tuesday, May 15 2007 @ 03:30 PM EDT
Is this a deliberate misinformation campaign? Linux (the actual Linux kernel,
not KDE|GNOME/X/GNU/Linux) is and will remain GPL2. We all know this, and PJ
definetely knows it: why keep muddling this issue up?

[ Reply to This | # ]

What will trigger/force disclosure of M$'s source code?
Authored by: Anonymous on Tuesday, May 15 2007 @ 03:38 PM EDT
given the FUD-diness of MS's claims, and responses from the community such as
Linus' @:

http://www.informationweek.com/news/showArticle.jhtml?articleID=199600

a question --

What action, and by whom, could/would force MS$to submit its os source code for
review for ITS likely patent infrigement(s)?

I suppose it's rather difficult to proclaim that they ARE infringing prior to
actually seeing that source code -- that would be rather sco-ish behavior ...

It seems that the f/oss community is united in belief that ms$is FUD-ing.

So rather than 'just' Novell's position of 'we don't agree', 0IN's position of
'we stand ready', Linus' position of"'it's likely that they infringe', at
what point does the argument get taken *to* them?

[ Reply to This | # ]

Why not a civil suite against Microsoft?
Authored by: Anonymous on Tuesday, May 15 2007 @ 04:12 PM EDT
Microsoft has basically threatened to sue any and/or all users of Linux OSs. To
me, this creates undo fear and worry to end users of Linux. I know most end
users aren't going to worry at all, but there are some that will worry and that
isn't right.

IANAL but couldn't a civil suite be brought up against Microsoft for making
claims that can cause some end users to be worried? Couldn't a civil suite be
used to force Microsoft to provide the specifics of their claims? (the
infringing patents)

Maybe its time to stop letting Microsoft get away with making threats it can't
backup. Maybe its time to force Microsoft's hand. At least then the patents
could be disproved or any infringing code fixed. It might be that some of those
patents include GPL code which would then mean Microsoft would have to make some
of their code open sourced.

Most of the Linux community says that there is no infringing code in Linux. If
this is the case, why not fight back and prove Microsoft wrong and be done with
it.

[ Reply to This | # ]

    Does This Mean We're In The Clear?
    Authored by: Simon G Best on Tuesday, May 15 2007 @ 04:17 PM EDT

    So, they have patents they think are infringed, but they won't litigate over them. Well, pardon my infringement and call me waiver!

    :-) Does that mean we're in the clear? That Microsoft, in choosing not to defend its claimed patents in the courts, has effectively foregone those patents when it comes to FOSS?

    I'm also thinking here of how FOSS licences allow all and sundry to copy, modify, redistribute, etc, allegedly infringing FOSS. If Microsoft chooses not to enforce one of its patents in a case of alleged infringement in one particular piece of FOSS, would the fact that it's FOSS mean that Microsoft is implicitly choosing to forego that patent in all other software that is, or even just could have been, derived from that FOSS? I bet Microsoft wouldn't see it that way, but how about the courts?

    ---
    "Public relations" is a public relations term for propaganda.

    [ Reply to This | # ]

    Caution: Careful Reading Required
    Authored by: goz on Tuesday, May 15 2007 @ 04:30 PM EDT
    "We're not litigating" does not mean "We will never litigate" it just means that
    they aren't right now. It also does not conflict with the next statement. That
    they didn't want to litigate in the past doesn't mean that they won't want to in
    the future. The statement essentially just states what we already know, that
    they have patents and haven't used them so far, at least against Linux.

    [ Reply to This | # ]

    OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
    Authored by: Toon Moene on Tuesday, May 15 2007 @ 04:31 PM EDT
    Microsoft:
    "We're not litigating. If we wanted to we would have done so years ago," said Horacio Gutierrez, Microsoft's VP for intellectual property and licensing, in an interview.

    Good.

    Now if someone could look up that link to the laches defense again (thanks, applause).

    ---
    Toon Moene (A GNU Fortran maintainer and physicist at large)

    [ Reply to This | # ]

      OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
      Authored by: PolR on Tuesday, May 15 2007 @ 04:46 PM EDT
      The update on Microsoft not litigating comes from a blog. The original interview the blog refers to is here. Read it carefully, it does not mean the same thing as the blog. Guitterez clearly says that while he doesn't want to litigate, he wants more deals like the Novell one. The complete quote is:
      "We're not litigating. If we wanted to we would have done so years ago," said Horacio Gutierrez, Microsoft's VP for intellectual property and licensing, in an interview.

      Instead, Microsoft wants to create more arrangements that mirror the company's deal with Linux distributor Novell. In November, the two agreed to share intellectual property and pledged not to sue each other's customers. "We created a bridge between two worlds that before were perceived to be unbridgeable," said Gutierrez.

      Then he follows up on how the GPL3 will tear down this "bridge". It is very clear the GPL3 annoys them greatly. :)

      Finally Guiterrez makes clear Microsoft collects royalties from Linux.

      Microsoft currently collects royalties from some companies that use Linux in their computing environments, Gutierrez said. However, he declined to indicate the number, the dollar amount Microsoft receives from those payments, or identify any of the companies by name.
      Nowhere I find an explanation of how they intend to collect the royalties if there is not an implied threat of litigation? They insist that there is an "intellectual property problem" in Linux but decline to identify the patents. They insist that they want a "solution" and want royalties.

      With all due respect to PJ, I don't see Microsoft blinking here. I see a mob like behavior. "We are not threatening you, we just want to collect a little money to ensure your protection."

      This is all double talk. They say they won't litigate but everybody understands this is how "intellectual property issues" are resolved when there is no license. This is just Microsoft's version of SCOSource.

      [ Reply to This | # ]

      Microsoft's timing doesn't look too good to me
      Authored by: Jude on Tuesday, May 15 2007 @ 04:49 PM EDT
      The court supervision of the DOJ v Microsoft settlement was recently extended
      for another two years. Microsoft is also having bad problems with antitrust
      authorities in Europe and elsewhere. Industry stooges in Europe are having
      another go at getting Europe to adopt a more U.S.-like patent system.

      All in all, right now seems like a really bad time for Microsoft to be using
      patents to threaten one of its few competitors AND showing the world how awful
      software patents can be.

      I wonder if the KSR v Teleflex decision has effectively gutted Microsoft's
      patent portfolio, so they decided to make a play now before the world figures
      this out?

      [ Reply to This | # ]

      Interesting story on RoughlyDrafted
      Authored by: rsmith on Tuesday, May 15 2007 @ 05:02 PM EDT

      Roughlydrafted has chimed in with a well reasoned article about MS patents threat, and why it is not a good strategy.

      ---
      Intellectual Property is an oxymoron.

      [ Reply to This | # ]

      • Godwin's Law - Authored by: Anonymous on Tuesday, May 15 2007 @ 11:21 PM EDT
      So what now ?
      Authored by: Latesigner on Tuesday, May 15 2007 @ 05:07 PM EDT
      Can they get the 400 million back from Novell?
      What is Dell going to do with all those licenses ?
      I'm sure Red Hat is laughing itself sick but what about the other companies that
      were dumb/spineless enough to sign?

      ---
      The only way to have an "ownership" society is to make slaves of the rest of us.

      [ Reply to This | # ]

      • So what now ? - Authored by: Anonymous on Tuesday, May 15 2007 @ 08:54 PM EDT
      Calling you waiver
      Authored by: Anonymous on Tuesday, May 15 2007 @ 05:22 PM EDT
      Wow, that comment sounds like that VP just gave the "All Clear" to
      open source to violate any existing Microsoft patents.

      But IANAL... Is he?

      [ Reply to This | # ]

      OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
      Authored by: Anonymous on Tuesday, May 15 2007 @ 05:38 PM EDT
      I wonder if there is a way to bring this to court and force them to show those
      235 patents... it would cause a lot more damage to them than to us.

      [ Reply to This | # ]

      • Bring to court? - Authored by: Anonymous on Tuesday, May 15 2007 @ 07:33 PM EDT
      OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
      Authored by: Anonymous on Tuesday, May 15 2007 @ 06:23 PM EDT
      1- who exactly execept the writer of the code could Microsoft sue.

      2- Supreme court 1- AT&T sues Microsoft for distributing some of it patents
      abroad. Microsoft won saying just sent the disk to a assembler abroad. Well
      Some one sends diOsk to Dell in China or the east, they put onto computer or
      laptop and deliver it to the buyer. Under the decision Microsoft just one, the
      sender of the disk did not break anyone's patent. So Microsoft can go to
      Thailand, Phillipines, China, etc and just try to put a stop. What about
      downloading a copy of from a foreign web site.

      3- The other patent case makes it a lot harder to justify a patent when there is
      prior art and it is obvious. There are pieces of software and the human
      interface, communications all around way before Microsoft came into existance.
      That body of previous art is going to put most of it's patents in the ash can.
      A judge told me it is going to have a far reahcing and long overdue effect.

      yccc

      [ Reply to This | # ]

      My tin-foil hat take on all the FUD is this:
      Authored by: robobright on Tuesday, May 15 2007 @ 06:54 PM EDT
      Microsoft wants to tie ODF to Linux, and Linux to the threat of patent
      infringment. Use MS Office and be litigation-free. Use ODF and be sued to the
      stone age.

      [ Reply to This | # ]

      Tiime to start a new hobby
      Authored by: Anonymous on Tuesday, May 15 2007 @ 07:33 PM EDT
      Every US patent Microsoft owns is registered at the US patent office. And, hey,
      we just recently got internet access to the patent database. People with the
      time and who program FOSS need to pro-actively start reviewing those records and
      begin the process of questioning the validity of the patents, whether because of
      prior art or non-obviousness or whatever. After all, there are literally
      millions of FOSS programmers in the world. If each one reviews one patent
      related to their area of expertise, every patent owned by Microsoft will have
      been reviewed by thousands of people. Considering how worthless most software
      patents are, I imagine very few of them that Microsoft owns (or anyone for that
      matter) can stand such scrutiny. I predict by the time this latest FUD campaign
      runs its course, Microsoft will have far fewer patents to litigate over...

      Someone (some company with a vested interest in FOSS) needs to donate resources
      to set up a central repository for the results.

      [ Reply to This | # ]

      Can we force Microsoft to put up or waive?
      Authored by: PolR on Tuesday, May 15 2007 @ 07:55 PM EDT
      The waiver alluded to in PJ's article seems flimsy because it only rest on a
      quote by Guitterez. This quote can be disputed and/or repudiated. Microsoft may
      also raises some additional facts that will muddle the waters.

      But the waiver need not be flimsy. Is there a way for people with stakes in the
      code to publicly and officially ask Microsoft about their patent claims? If
      Microsoft fails to disclose, then they publicly say "We don't want you to
      tell what the issue is. We just want you to trust us and sign sign on the
      dotted line." If done properly such response should trigger an indisputable
      waiver because it will make crystal clear that Microsoft had the opportunity to
      fix any alleged infringement and deliberately let it continue.

      Could someone with the right legal skill craft something that will remove any
      wiggle room for disputing the waiver if Microsoft doesn't put up?

      [ Reply to This | # ]

      Does anyone else feel this is starwars revisited :)
      Authored by: dmarker on Tuesday, May 15 2007 @ 09:53 PM EDT

      I have this sense of adventure where the evil empire just announced somewhat
      inadvertently that they are effectively declaring war on the forces of the
      'free'. :)

      Microsoft's scout, tSCOg are a humbled quivering heap on the floor awaiting
      their final fate (bankrupcy, counter-suits, dismemberment, whatever).

      I can't see Microsoft backing out of this nor being let off the hook. The FOSS
      world will come after them & force the issue. A massive loss of face for
      them or a mighty slug-it-out battle until there is just one victor (and one
      crumpled Microsoft).

      DSM

      [ Reply to This | # ]

      One question for OIN on the deterrence option
      Authored by: hAckz0r on Tuesday, May 15 2007 @ 10:26 PM EDT
      Just how is OIN's patent holdings going to help once Microsoft buys and
      transfers some strongly defendable patents to a patent holding company that only
      does extortion, and has no software products which would be vulnerable to the
      retaliation of patent suits from OIN? This might be the chink in the armor and
      Achilles heal for an otherwise good deterrence plan. Microsoft already tried and
      failed a similar plan by using tSCOg as the fall guy, but they made mistakes
      that Microsoft is sure to have learned from. A pure patent holding company will
      be a much harder entity to stifle legally through any counter patent claims.

      ---
      DRM - As a "solution", it solves the wrong problem; As a technology its
      logically infeasible.

      [ Reply to This | # ]

      Danegeld
      Authored by: The Mad Hatter r on Wednesday, May 16 2007 @ 03:11 AM EDT


      I think we all need to remember this line from Rudyard Kipling:

      "For anyone paying the Danegeld, will never get rid of the Dane"

      The background for those who aren't history addicts like myself is from Dark Age
      England - where certain British monarchs decided to buy off the Danish invaders,
      only to find that they kept coming back for more, and that in the end it would
      have been cheaper to fight.

      And we are in the same situation with Microsoft. I don't have a list of which
      companies paid Danegeld to Microsoft, if I did I'd really love to send them a
      copy of Kipling's poem.

      For anyone who hasn't heard it, Firebird Arts and Music recently released a CD
      called "Boarding Party" by Michael Longcour. Michael has set the poem
      to song, and I recommend the CD highly.



      ---
      Wayne

      http://urbanterrorist.blogspot.com/

      [ Reply to This | # ]

      • Danegeld - Authored by: Anonymous on Wednesday, May 16 2007 @ 07:03 AM EDT
      LXer Patent List
      Authored by: Anonymous on Wednesday, May 16 2007 @ 04:27 AM EDT
      LXer Patent list

      Lxer have a good list of patents MS might infringe on.

      [ Reply to This | # ]

      Stupid question maybe, but...
      Authored by: Anonymous on Wednesday, May 16 2007 @ 05:00 AM EDT
      don't they have any obligation to protect their IP? Or is that only copyrights?

      Or am I just confused? (yes/no/both :x )

      [ Reply to This | # ]

      OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
      Authored by: talldad on Wednesday, May 16 2007 @ 05:32 AM EDT
      [Quote]
      Update:
      Microsoft blinked, according to this report from Tech.Blorge:
      "We're not litigating. If we wanted to we would have done so years
      ago," said Horacio Gutierrez, Microsoft's VP for intellectual property and
      licensing, in an interview.

      So, they have patents they think are infringed, but they won't litigate over
      them. Well, pardon my infringement and call me waiver!
      [/Quote]

      Or if you really want to be rude, I see your claims and call your estoppel!



      ---
      John Angelico
      Down Under fan &
      OS/2 SIG Co-Ordinator

      [ Reply to This | # ]

      We are SO obviously winning!
      Authored by: Anonymous on Wednesday, May 16 2007 @ 08:36 AM EDT
      The more we win, the further the threats go.

      If Linux goes to 10% of the desktops (MS core business), MS actually might try to test our resilence with just one or two patent infringement court cases.

      Because 10% is the beginnig of the rush to a competitive marketplace. I could see that when snowboards came up. First was the long long way for the snowboards to reach a technically similar state as the skis already had, when 10% of the former skiers at least partly had switched to snowboards, the market became interesting enough that loads of money was poured into the snowboard reserch and product development. Then within a comparatively short time half of the skiers switched to snowboarding. Now, after the ski-builders learnd some things from the snowboarders (carving), some people switched back to skis and the ratio of skiers/snowboarders is mostly constant.

      Microsoft is now in the same position as the ski manufacturers were when the snowboard reached technical perfection. At that point in time the snowboard was just waiting to be picked up by the masses, nothing technical stood in the way to do so.

      It is now similar with Linux distributions. Nothing technical stands in the way of using one of the major Linux distros. People just need time and an opportunity to pick it up. Like having to reinstall the machine anyway due to a virus infection. Or because people don't want their new Computer with Vista on it spy on them.

      Whatever the reason may be, when we finally reach 10% marketshare on the desktop, we will no longer have to beg companies to make their proprietary closed source application available natively on Linux, people will just assume that everything is available for Linux, and if a company does not port their application, well - bad for that company. Copyright assigned to PJ

      [ Reply to This | # ]

      Another voice of reason in a ZDNet article.
      Authored by: Anonymous on Wednesday, May 16 2007 @ 09:17 AM EDT
      Choice quote:
      "Finding a patent, especially a software patent, on the U.S. Patent and Trademark Office Web site is very difficult," Jenkins said. "Almost nobody calls everything the same thing...Either you use a (search) term so broad that you get a return of 1,000 patents, or if you narrow it down, it's likely you're going to miss a lot."

      See the ZDnet article by Stephen Shankland.

      Toon Moene (not logged in while at "work")

      [ Reply to This | # ]

      "Litigation is a waste of everyone's resources."?
      Authored by: russellmcormond on Wednesday, May 16 2007 @ 12:43 PM EDT
      This is where I disagree. Software is patentable in the USA not because a law was passed that extended patent law to information/mental processes, but because bad court cases set bad precedent. In order to fix this mistake, we need to return to the courts now that we have some very smart lawyers and legal resources on our side.

      I wrote about this on my own BLOG earlier today: Is it the Software Freedom Law Center's (SFLC) controlling the US software patent debate?

      ---
      Russell McOrmond, FLOSS Consultant

      [ Reply to This | # ]

      OIN Statement: "We stand ready to leverage our IP portfolio" - Updated
      Authored by: Anonymous on Wednesday, May 16 2007 @ 01:40 PM EDT
      Considering the strong interest (pro and con) generated in Microsoft's
      "we're gonna enforce our patents" threat against FOSS, and the likely
      collateral damage for all businesses whether or not Microsoft ever follows
      through with the threat, wouldn't it be a hoot if Congress is finally forced off
      its collective posterior and ends up making most software patents ineffective or
      invalid through legislation?

      It would be like the last failed attack against FOSS -- the SCO ongoing farcical
      lawsuit against Linux which has resulted in the strong vindication of Linux at
      least as far as copyrights related to UNIX are concerned -- the practical end of
      the patent threat may possibly make most software patents very difficult to
      enforce indeed.

      [ Reply to This | # ]

      Cold shower
      Authored by: wllacer on Wednesday, May 16 2007 @ 01:46 PM EDT
      Is what i think we need ... i see too much optimism, which might impair the
      ability to fight the threat

      Fact 1: In the USA, software patents DO exist. But only there. They aren't
      enforcable everywhere else
      Fact 2: Litigation in the USA is extremely expensive, so either revoking a
      patent or -at last- getting the Supreme Court to declare them void, can ruin
      even a medium size company
      Fact 3: There are 99% chances that any software violates one or more third party
      patents, even some non trivial ones (if you target the same problem, a
      convergent solution is not uncommon, although it may not be
      "trivial")
      Fact 4: Most of the big companies have cross licencing agreements to cover its
      butts, but this, by its own nature is difficult to achieve with/in the FOSS
      world

      and

      Apriori 1: Never trust the 800 pound gorilla which stood by you the last time.
      His priorities may have changed.

      In the worst case, it can be a hard, but recoverable, loss for the FOSS comunity
      to lose all the USA-based companies and developers, and a much bigger loss,
      probably, for the USA themselves.

      And by the way, I expect Samba being probably out of the loop (too many years
      around), but i woudn't touch Mono now with a ten-foot pole ...

      [ Reply to This | # ]

      MS's goal is divide and conquer
      Authored by: warner on Thursday, May 17 2007 @ 06:17 AM EDT
      “If people had understood how patents would be granted when most of today's
      ideas were invented and had taken out patents, the industry would be at a
      complete standstill today. ... The solution is patenting as much as we can. A
      future startup with no patents of its own will be forced to pay whatever price
      the giants choose to impose. That price might be high. Established companies
      have an interest in excluding future competitors.”
      ­ 1991 Bill Gates, Microsoft


      The quote above is the primer to what Microsoft is about. It is about
      "excluding future competitors", plain and simple. Let me make my case
      for why.


      Now lets go over some hypotheticals.

      1) Microsoft's patents are valid.
      2) They successfully prosecute someone with deep pockets, let's say IBM.
      2) they are awarded the maximum damages possible.
      4) There is no counter action.

      What could the hypothetical consequences be of those hypotheticals?

      1) IBM has (wildly, astronomically high) a charge of 4 billion to pay out, huge
      bite but they will go on.
      2) All offending code has to be adjusted to deal with the patents, lets say it
      takes a year (again wildly inflated for our hypothetical).

      This is an ideal set of hypotheticals and would seem to satisfy the stated
      desire and requirement of Microsoft toward their fiduciary shareholder
      responsibility and business 101.

      Now for any other company 4 billion would be the lottery but for MS it a
      quarters proffit. While shipping reduced functionality software would be a blow
      to FOSS until they deal with rewrites, it won't be a killer. It could stall
      adoption, it could send some to Novell, it could even eat into the install base.
      But the truth is it's FOSS, even if all the paid programmers leave, it will
      continue. In all the countries that haven't yet introduced sw patents, among all
      the poorer countries that face the choice of reduced functionality software or
      the increasing difficulty of pirating it will go on.

      Microsoft suing and wining doesn't change the rules of the game, it doesn't get
      them what they want. So what do they want?

      MS has a monopoly of some 90% on desktops, market share of some 60% in servers,
      what about 95% of office suites. This is the bulk of their revenue. Their first
      directive is to not lose revenue, their second directive is to increase
      revenue.

      There are three primary ways MS can increase revenue (not withstanding the
      marginal increases to be had from increased efficiencies)

      1) Derive more revenue from their current market share.
      2) Increase their market share.
      3) Successfully enter new markets.

      Yea, I know much of this is elementary, bear with me.

      Microsoft's ability to increase revenue from current market share comes from two
      quarters, price increases and reducing piracy levels. The primary constraint on
      price increases comes from Linux, without it they are once again the lowest
      price offering (granted OSX as a broken out item is less than XP but as a system
      it is generally higher). While they have historically drastically undercut UNIX
      much of the current server market can't support UNIX pricing levels, the point
      being that for the current installed base there are modest limits to what they
      can achieve through price increases. Piracy is another matter. If we assume an
      average global piracy rate of 50% we are talking about real money. To take
      advantage of that MS needs two things, one they need a way to enforce payment
      and second they need to be the lowest cost or only choice (especially if we
      assume that one of the primary motivations to piracy is economic). The easiest,
      surest way to enforce payment is a technological kill switch, a capability MS is
      clearly building toward. Now once they build that kill switch before they throw
      it they have to make sure there is no credible alternative, and certainly not
      one that is cheaper and arguably of comparable functionality.

      Increasing market share, MS is a victim of their own business success here. It's
      hard to go anywhere but down with some of their market percentages, unless you
      factor in the growth of their current markets. Currently about 1/6 of the world
      is computerized, if we assume a conservative 1/2 of the population ends up
      computerized that is a threefold increase in market size. Unfortunately for MS
      the next 2/6 are less affluent than the current 1/6, how much of that market can
      they count on capturing if they aren't the lowest cost option? This is what MS
      has to be most focused on. If Linux remains in the market what percentage of
      this increasingly cost conscious 2/6 will break to Linux, 30%, 50%, 70%,
      especially if they are forced to actually pay for it? If it is even the
      conservative number a very important thing happens, their position as a monopoly
      falters.

      MS's record on entering new markets has two success rates one for markets that
      have a corollary to a market they currently dominate, and a very different one
      for markets without that corollary. Additionally, the resistance from possible
      partners for new markets has increased over time do to there predatory business
      practices. Clearly their ability to quickly dominate new markets and set defacto
      standards is fundamentally affected with the loss of monopoly positions. Without
      monopoly position they have to compete in ways they haven't had to for some
      time.

      MS has two advantages over nearly all other competitors, first is their monopoly
      position and second is the extent of the network effect that they can bring to
      bear throughout their platform. FOSS is the only other cohesive entity that has
      been able to credibly challenge the former and can match the latter. From a
      global perspective it is FOSS that provides the competition and obstacle to all
      of MS's growth opportunities, market by market. And these growth opportunities
      dwarf by many orders of magnitude even the the most wildly optimistic possible
      monetary wins from litigation.

      The only worthwhile goal here for MS is "excluding future
      competitors", and they can't achieve that by actually going to court.

      But what happens if they can get Redhat and other successfull commercial
      organizations to do similar Novell deals? It seems you would begin to fracture
      the FOSS comunity and this has to be their goal. Their efforts to date have been
      to divide FOSS participants, whether that is their effort to differentiate
      between paid and non-paid developers or one FOSS distributor from another. If
      Novell developers are free to develop code that is "safe" from MS
      patents but no one else is safe to use it, they have created a division. If
      other distributors do a similar Novell deal only "distributors" that
      MS is willing to do such a deal with are safe to distribute the code. If MS is
      successfull propagating the Novell deal it fractures the FOSS ecosystem _as well
      as_ giving them a revenue stream, but the primary goal is to short circut the
      virtuous cycle of FOSS licenses. Divide and conquer is the goal here and that is
      not accomplished by going to court.

      Foss can't continue as it has on code that is patent encumbered, and if MS can
      get a percentage of FOSS players to accept that premise they have taken the
      first step to halting it.

      That's the game they are up to. It's not about collecting royalties on patents,
      it's about rolling in a Trojan horse to destroy the community from within.

      ---
      free software, for free minds and a free world.

      [ Reply to This | # ]

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