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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."

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