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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the PUBPAT press release of last week.


Public Interest Organization Monitors Patent Assertion by Software Monopolist

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

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

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

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

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