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Microsoft and A Patent Checkmate of My Dreams - Updated
Tuesday, September 08 2009 @ 04:49 PM EDT

Microsoft tried to auction off some patents that they claim relate to Linux. Patent trolls could have bought them. Instead Open Invention Network (OIN) got them. Why would Microsoft wish to get rid of 22 patents that it presumably could sue Linux over? Let's try to imagine what might have happened.

Let's pretend you are Microsoft, and you want to be evil. Of course, Microsoft never would be. They are internationally known for fair dealing with all their competition, particularly Linux. But let's pretend.

Update: It's actually worse than I imagined. See update at the end of the article, the account from Red Hat.

OK. So you are Evil Microsoft and you decide it's too difficult and dangerous to sue Linux yourself. Antitrust annoyances, counterclaims, and PR and all that. What to do with that patent portfolio to really cause trouble for Linux, without having your fingerprints all over it?

Eureka! You could sell the patents to patent trolls, and let *them* be the bad guys. Is that not perfect if you are evil? Not that Microsoft would ever be evil. We all know there is a New Microsoft in the land.

But in our imagination, let's say that because that is your wicked plan as Microsoft Evil, you set up an auction without offering OIN or any Linux players a chance to bid. You only invite folks who don't have a product to sell, only entities that collect patents, or what is known as "non-practicing entities" a/k/a patent trolls, who are immune from counterclaims against their products, because they don't have any.

Would that not have been the perfection of evil? You are positively drooling. And who'd ever know it was evil you who was really behind it?

Wait!! Over the hill you see... no, it can't be! Here comes Allied Security Trust, or AST, riding in on a white horse and scooping up the patents you tied to the railroad tracks, and then selling them to OIN, whose very purpose in existing is to protect Linux! Linux is saved! Curses, you cry out! Foiled again!

Would that not be a wonderful imaginary tale? And here is the first paragraph of the press release from OIN, which will enable you to decide how far off my wild imagination really is:

Open Invention Network (OIN), a collaborative enterprise that enables innovation in open source, today announced the acquisition of 22 Linux-focused patents that were marketed and sold by Microsoft. The patents were recently purchased by Allied Security Trust (AST) from Microsoft to ensure the patents did not fall into the hands of non-practicing entities (more information on non-practicing entities is available at http://en.wikipedia.org/wiki/Patent_troll, among other sites) that could seek to assert the patents against Linux products. OIN subsequently acquired the Microsoft patents from AST.
Update: More details from CNET's Ina Fried, including a statement from Microsoft. They meant to do it:
In an interview, [OIN's] Bergelt said that his organization was not invited by Microsoft to directly participate in the bidding for the patents, raising the specter that Microsoft was more interested in selling to someone that might have targeted Linux as opposed to just maximizing the sales price for the patents. "We were not offered an opportunity to participate in the bidding for this portfolio that Microsoft was selling," Bergelt said.

For its part, Microsoft confirmed that it sold the patents to AST in July, but declined to comment on the terms of the deal. Microsoft said that the patents were indeed ones that it had acquired several years ago in a deal with SGI. "These patents were deemed to be non-core to our business and non-essential for our IP portfolio," Microsoft spokesman Michael Marinello said in a statement.

: D

Update: Red Hat has now published an account. It is even worse than I imagined -- Microsoft also offered suggestions to the patent trolls on how to use the patents against Linux -- EU Commission, DOJ, are you watching? If the patents were non-core and not important to anyone, as some apologists have suggested, how do they explain the suggestions on how to use them against Linux? It's a rhetorical question. There is no valid answer. Here's the Red Hat material:

Microsoft and Patent Trolls

September 9th, 2009
by Red Hat

The Open Invention Network (OIN) learned recently that Microsoft was planning to auction off some of its software patents, which we understand it marketed to trolls and some other non-practicing entities. It also used marketing materials that highlighted offensive uses of the patents against open source software, including a number of the most popular open source packages.

This looked to us like a classic FUD effort. To unleash FUD, you assemble a lot of patents of uncertain value, annotate them with a roadmap for the companies and products to be targeted with the patents, put the lot in the hands of trolls schooled in patent aggression, and then stand back and wait for the FUD to spread with its chilling effect.

Fortunately, OIN (through the helpful assistance of Allied Security Trust) managed to obtain this lot of 22 patents. And as part of OIN’s portfolio, they will not be used to cause FUD regarding open source software.

Microsoft has recently sent signals that it wishes to be considered FOSS friendly, including contributing code to the Linux kernel. And we have applauded these efforts.

But its true colors seem in question. It sued Tom-Tom using questionable patents that targeted Linux and has sought to use the alleged strength of its public patents to twist the arms of its clients and partners under the cloak of a confidentiality agreement-imposed secrecy blanket. This latest attempt to encourage patent aggression by trolls against FOSS further shows that Microsoft is not yet committed to the path of peace with the open source software community and appears intent on inappropriately preserving and extending its dominant market positions in the operating system and personal productivity suites.

I never applauded Microsoft's efforts, personally. I have consistently written that there is no new Microsoft. And that they need to be treated in harmony with their actions, not their words. They hate FOSS, and they show it. They will kill it, if you relax and let them. Now they showed it in such bold relief that there can be no further pretense. They are what they are. And hating their methods is not a disease. It's the reality principle. I want to thank AST and OIN, and all their members, including Red Hat, for being realistic about Microsoft, because thinking clearly and acting with skill, factoring in what Microsoft *really* does, is the key to such bold and creatively successful action. Thank you.

The Linux Foundation has now issued a statement calling on Microsoft to stop secretly attacking Linux. I'm sure they'll do that, asap:

"The reality is that Windows and Linux will both remain critical parts of the world's computing infrastructure for years to come," he wrote. "Those customers, who have the ear of Microsoft CEO Steve Ballmer, need to tell Microsoft that they do not want Microsoft's patent tricks to interfere with their production infrastructure. It's time for Microsoft to stop secretly attacking Linux while publicly claiming to want interoperability. Let's hope that Microsoft decides going forward to actually try to win in the marketplace, rather than continuing to distract and annoy us with their tricky patent schemes."

Here's the complete OIN press release:

******************************

September 8, 2009; 4:00 p.m. EST

Open Invention Network Acquires Linux-Focused Patents Marketed by Microsoft

Purchase of Microsoft Patents Safeguards Linux Community

Durham, NC (September 8, 2009) - Open Invention Network (OIN), a collaborative enterprise that enables innovation in open source, today announced the acquisition of 22 Linux-focused patents that were marketed and sold by Microsoft. The patents were recently purchased by Allied Security Trust (AST) from Microsoft to ensure the patents did not fall into the hands of non-practicing entities (more information on non-practicing entities is available at http://en.wikipedia.org/wiki/Patent_troll, among other sites) that could seek to assert the patents against Linux products. OIN subsequently acquired the Microsoft patents from AST.

"Today's announcement evidences OIN's continued commitment to acquire patents that may be relevant to Linux," said Keith Bergelt, Chief Executive Officer of Open Invention Network. "We are pleased to have purchased these patents and view this as a model of successful collaboration among defensive patent organizations that share a common goal of creating freedom of action for practicing entities across Linux and the broader technology sector. The prospect of these patents being placed in the hands of non-practicing entities was a threat that has been averted with these purchases, irrespective of patent quality and whether or not the patents truly read on Linux."

"Allied Security Trust is pleased that Open Invention Network had interest in acquiring the Open Source patent portfolio. OIN's purchase ensures that these important patents will not be used by patent trolls or others seeking to disrupt Linux and the many companies and individuals advancing this important technology," said Dan McCurdy, Chief Executive Officer of Allied Security Trust.

About Allied Security Trust

AST is a Delaware statutory trust currently with 15 member companies headquartered in North America, Europe and Asia. The Trust provides opportunities to enhance companies' freedom to sell products by sharing the cost of patent licenses. To date, the Trust has invested $40 million in patent purchases over its 30 months of operations. Through such purchases, the Trust provides an excellent opportunity for patent holders of all sizes to generate a return on their rights by selling patents to the Trust. AST is not an investment vehicle. Its purpose is freedom of operation and cost reduction. It generates no profits and does not engage in patent assertions against other companies. AST maintains a "catch-and-release" commitment that returns to the market in a timely manner patents acquired on behalf of Trust members after licenses are secured. The Trust also addresses the increasing need for innovative companies to defend against costly patent law suits. For more information, visit www.alliedsecuritytrust.com.

About Open Invention Network

Open Invention Network is a collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux by acquiring and licensing patents, influencing behaviors and policy, and protecting the integrity of the ecosystem through strategic programs such as Linux Defenders. It enables the growth and continuation of open source software by fostering a healthy Linux ecosystem of investors, vendors, developers and users. Open Invention Network has considerable industry backing. It was launched in 2005, and has received investments from IBM, NEC, Novell, Philips, Red Hat and Sony. For more information, visit www.openinventionnetwork.com.


  


Microsoft and A Patent Checkmate of My Dreams - Updated | 184 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: entre on Tuesday, September 08 2009 @ 05:31 PM EDT
If Needed for PJ...

[ Reply to This | # ]

Corrections, if any, go here
Authored by: ilde on Tuesday, September 08 2009 @ 05:31 PM EDT
So PJ can easily find them.

[ Reply to This | # ]

I'm a bit unclear on the particulars:
Authored by: Anonymous on Tuesday, September 08 2009 @ 05:35 PM EDT

Was OIN and other Linux players in fact excluded from bidding on the patents in
question?

Did Allied Trust somehow misrepresent their intentions?

Or did MS simply fail to do their homework?


The implication seems to be that MS did attempt to offload anti-Linux patents to
trolls, and got hoodwinked. Is this in fact the case? Or was MS simply selling
off patents to any comers, and the "good guys" had the highest bid?

It seems to me that if MS wanted to use third-party patent trolls to attack
Linux, a private sale would be more effective than an auction--unless they got
greedy...

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: Anonymous on Tuesday, September 08 2009 @ 05:39 PM EDT

So, I'm guessing AST won't be getting a card and fruit basket from MS this Christmas...

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: Anonymous on Tuesday, September 08 2009 @ 05:45 PM EDT
The Register reports that the patents in question were the 3D graphics ones Micros oft bought from SGI. There was some discussion at the time of how they would effect OpenGL. With the move to programmable shader based rendering, it is possible these patents are not as relevant as they used to be.

[ Reply to This | # ]

To make it perfect....
Authored by: kawabago on Tuesday, September 08 2009 @ 05:48 PM EDT
To make it perfect, OIN should now turn around and sue Microsoft over their own
patents!

[ Reply to This | # ]

Off Topic threads (non-anonymous starter)
Authored by: bugstomper on Tuesday, September 08 2009 @ 05:58 PM EDT
Use this for the Off topic threads -- Some people won't see the Off Topic
starter that was posted by Anonymous

Please keep your posts here off topic.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Tuesday, September 08 2009 @ 06:00 PM EDT
Place the title of the News Picks article you are writing about in the title.
Use clickies for clicky goodness.

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: hans on Tuesday, September 08 2009 @ 06:20 PM EDT
This feels like some kind of Charles Stross story.

Hans

[ Reply to This | # ]

Might the "spin" be something like ....
Authored by: Anonymous on Tuesday, September 08 2009 @ 06:41 PM EDT
... Today the Open Invention Network indirectly purchased some Microsoft patents
that clearly recognizes Microsoft's claim that the Linux operating system
infringes Microsoft patents. Microsoft remains open to discussion and licensing
of further Microsoft patents with Linux distributors that continue to be
infringed by the Linux operating system.

You just never know.

Cheers from the cellar

[ Reply to This | # ]

Patents, and flying chairs
Authored by: electron on Tuesday, September 08 2009 @ 06:46 PM EDT
I imagine that Balmer will be throwing several chairs around over this.



---
Electron

"A life? Sounds great! Do you know where I could download one?"

[ Reply to This | # ]

An even more tin foil hat theory
Authored by: bugstomper on Tuesday, September 08 2009 @ 06:55 PM EDT
What if the hypothetical Evil Microsoft (EMS) was even more sneaky? Perhaps
these patents really are obsolete and are or will soon be no longer useful
against current versions of Linux. EMS pretends to try to sell the patents to
anti-Linux trolls, but arranges things so that white-knight AST rushes in to
Linux's defense. Microsoft helps their bottom line by selling off some useless
patents. AST or OIN waste money that could have been available for buying useful
patents.

Score EMS 1, rms 0

Just speculating :)

[ Reply to This | # ]

Hot dog!
Authored by: wvhillbilly on Tuesday, September 08 2009 @ 07:15 PM EDT
Great coup fourre for Linux!

---
Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?"

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: Anonymous on Tuesday, September 08 2009 @ 07:30 PM EDT
I can't help but think that M$ is now working on ways to
poison AST and OIN. Pretty soon M$ won't know if it is
coming or going. It could be real messy in Redmond when
M$ pops.

[ Reply to This | # ]

Allied Security Trust purchased the Cattleback/SCO patent
Authored by: stats_for_all on Tuesday, September 08 2009 @ 07:35 PM EDT
Allied Security Trust also purchased the SCO/Cattleback Patent

[ Reply to This | # ]

Microsoft and A Patent En passant of My Dreams
Authored by: Crocodile_Dundee on Tuesday, September 08 2009 @ 08:01 PM EDT
I think that would have been a better title.

This is not the end of Microsoft, it is no more than the capturing of a passing
pawn.

One just hopes that this was not a sacrifice to open up an attack on our king.

---
---
That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

  • To stay in the analogy - Authored by: Anonymous on Tuesday, September 08 2009 @ 08:40 PM EDT
  • Passing Pawn - Authored by: Anonymous on Wednesday, September 09 2009 @ 06:22 AM EDT
This is threading water, we need abolition
Authored by: ciaran on Tuesday, September 08 2009 @ 09:54 PM EDT

This is a really expensive way to dodge a tiny part of the software patent problem, and it involves paying Microsoft millions. And for every such trick we win, how many did we lose?

The upcoming Bilski review is the first time in 28 years that the Supreme Court in the USA will review the patentability of software - that's were we can get a real victory. I'm working on an amicus brief which'll have to be submitted within about two weeks. If anyone wants to help, it would be very useful to expand the swpat.org wiki's information about studies which show the harm of software patents:

And to add more info about arguments for abolishing software patents:

Thanks.

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: Anonymous on Tuesday, September 08 2009 @ 10:27 PM EDT
Didn't Novell do the same thing? They sold Novell DOS to
Caldera with the understanding they would sue Microsoft. And
now look at things, with Caldera (now new-SCO) suing IBM and
Novell over a Unix in a meritless lawsuit.

Sometimes, I think everything in America is just geared
towards keeping lawyers gainfully employed.

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: Anonymous on Tuesday, September 08 2009 @ 11:18 PM EDT
I found AST's website (what there is of it) intriguing. The CEO apparently was
involved with IBM at one point, and is also deeply involved with a group called
Patent Freedom. It's almost as if we have a very weird sort of patent troll
looking out for us. I guess it's sort of reassuring to know the free/open source
community also has some shadowy figures supporting it.

[ Reply to This | # ]

Speaking of Intellectual Vultures
Authored by: SpaceLifeForm on Tuesday, September 08 2009 @ 11:47 PM EDT
Link

Patent-hoarding giant Intellectual Ventures has long beat the drum that it doesn't file lawsuits.

But now Intellectual Ventures has started selling some of its 27,000 patents to people who aren't afraid to sue -- and in some cases IV will get a share of the prize. It's a scary scenario for tech companies that may end up in the legal crosshairs, but industry observers say it was only a matter of time.

"They have made commitments to investors and companies to monetize in some form or fashion billions of dollars of patents," said Dan McCurdy, founder of PatentFreedom, which tracks nonpracticing entities, or patent trolls. "In my view, it's inevitable: Whether they do it themselves or through a third party, they're going to have to litigate."

One such lawsuit was filed on Aug. 10 by none other than Raymond Niro, the prolific patent plaintiff lawyer with Chicago's Niro, Scavone, Haller & Niro. Niro is seeking millions from Eastman Kodak Co. and CDW Corp. for infringing a patent on digital image frames. His client is a shell company called Picture Frame Innovations LLC, which recently acquired the patent in question from an Intellectual Ventures shell company, according to the inventor and public records.

Basically, OIN bought patents from AST to prevent a scenario similar to that being carried out by a litigation troll that bought a patent from IV.

It's a very high-stakes form of gambling at the litigation roulette wheel.

If you have money to burn and want to take the risk, you buy some patent from IV, and sue someone for a chance of profit.

It is sick, and not the intention of the patent system.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Maybe Microsoft was being clever
Authored by: prmills@earthlin on Wednesday, September 09 2009 @ 12:54 AM EDT
Since Microsoft could never get the Linux users to pay license fees directly to
Microsoft, what if Microsoft was providing a face saving way to license these
patents by selling them to a company (AST) that would sell them to OIN?

In
effect, they got their licensing money by the sale of these
patents!

Furthermore, they know they face government scrutiny and well as
patent
ownership scrutiny with a lawsuit against Linux.

In effect they bypass
linux users anger and the governments danger by this
move.

[ Reply to This | # ]

AST also obtained the SCO patent.
Authored by: Anonymous on Wednesday, September 09 2009 @ 03:10 AM EDT
IIRC.

[ Reply to This | # ]

Being sued by a patent troll, doesn't mean you can't sue Microsoft!
Authored by: Anonymous on Wednesday, September 09 2009 @ 03:50 AM EDT
"Eureka! You could sell the patents to patent trolls, and let *them* be the
bad guys."

Microsoft has to remember that with any scheme that has its finger prints on it,
there is a risk of being sued anyway.

In other words, the moment a patent troll "sues Linux", with a
previous Microsoft patent, Microsoft would get sued by OIN or a special
corporation set up for the purpose.

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams
Authored by: darthaggie on Wednesday, September 09 2009 @ 10:51 AM EDT
Eureka! You could sell the patents to patent trolls, and let *them* be the bad guys. Is that not perfect if you are evil?
Not only is it perfect, I've gone ahead and patented the method. Wanna bid on that patent?

[ Reply to This | # ]

Future looking...
Authored by: Anonymous on Wednesday, September 09 2009 @ 03:47 PM EDT
I expect that MS will change direction and start pushing to remove software
patents (think I4I). By selling the ones they control now they are claiming the
value before they end up worthless. :[

[ Reply to This | # ]

Only 22? But MSFT had over 200 patents against Linux
Authored by: Anonymous on Wednesday, September 09 2009 @ 04:38 PM EDT

Microsoft's public statements suggest that it had over 200 patents that impacted Linux. OK, so now it's sold about 10% of them ... that means it has about 90% of them left.

Explain to me again just what we have to celebrate here?

[ Reply to This | # ]

Training patent trolls to attack projects
Authored by: dyfet on Wednesday, September 09 2009 @ 09:06 PM EDT
What I am most interested in is the assertion by RedHat that Microsoft offered
specific training or direction as part of their auction on how to use the
patents they were auctioning to damage I gather specific FOSS packages and
projects. I am curious which projects were so targeted, as it seems to me they
would have legal standing whether for a formal complaint of illegal business
practices and restraint of trade or other legal remedies. I am also curious
which projects I will specifically choose to go out of my way to donate to as a
result.



[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams - Updated
Authored by: Anonymous on Wednesday, September 09 2009 @ 10:49 PM EDT
I would hope people here would be a bit more intelligent than this, and not
frame it as something only microsoft is doing or would do.

The problem is still software patents, not Microsoft.

So you solution, is to have people patent and then just give up those rights to
the public domain? I'd hope not.

---------------------------------------------------------
In a memo to his senior executives, Bill Gates wrote, “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.” Mr.
Gates worried that “some large company will patent some obvious thing” and use
the patent to “take as much of our profits as they want.”
http://government.zdnet.com/?p=3225

[ Reply to This | # ]

I eagerly await
Authored by: Anonymous on Thursday, September 10 2009 @ 06:27 AM EDT
I eagerly await OIN's appraisal of these 22 patents.

Would they have ben enforceable (fundamentally disruptive in the wrong hands)?

What parts of Linux are they related to?

Veritas Vincit

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams - Updated
Authored by: technomom on Thursday, September 10 2009 @ 09:20 AM EDT
Red Hat's patent trolls are better than Microsoft's patent trolls? Who'd'a
thought?

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams - Updated
Authored by: Anonymous on Thursday, September 10 2009 @ 11:54 AM EDT
Can anybody provide copies of the "marketing materials that highlighted
offensive uses of the patents against open source software, including a number
of the most popular open source packages" ?

[ Reply to This | # ]

Microsoft and A Patent Checkmate of My Dreams - Updated
Authored by: Anonymous on Thursday, September 10 2009 @ 07:12 PM EDT
This sums it up:

http://4.bp.blogspot.com/_08Ham7wUW0g/Sqha5ozXXnI/AAAAAAAAAAM/OF1eaEiC0Ss/s1600-
h/trolls.jpg

[ Reply to This | # ]

Respiration Patent
Authored by: lordshipmayhem on Saturday, September 12 2009 @ 01:31 PM EDT
I intend to patent the act of respiration. (Hey, if they can patent genes, I
can patent respiration.)

Everyone will now owe me $20. I'll sue Ballmer (and Gary Bettman, while I'm at
it) first, just to establish a precedence, and request a cease-and-desist order
until I get paid my $20 plus legal fees.

[ Reply to This | # ]

Where are the actual documents?
Authored by: treed on Tuesday, September 15 2009 @ 03:46 AM EDT
Where are these documents in which Microsoft markets the patents as being
good for attacking FOSS? That's what I really want to see. How do we know they
really exist?

[ Reply to This | # ]

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