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To read comments to this article, go here
Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Sunday, May 13 2007 @ 11:45 PM EDT

I'm being buried alive in email about the Fortune article about Microsoft's patent saber rattling, which I thought so unimportant I put it in News Picks earlier. Here's why I'm not unduly worried so far.

My reasons for not worrying are:

1. The recent KSR decision by the Supreme Court on obviousness means that suing anybody will result in a lot of those patents being thrown out. Yes. You've seen some of the issued Microsoft patents and you laughed. Extrapolate. The Microsoft v. AT&T case also has interesting implications. The patent landscape has radically altered.

2. FSF has told us that its lawyers believe that Microsoft has already become a distributor of GPL'd Linux, thanks to the SUSE vouchers and other things, so there is the defense against any patent litigation right there, because even GPLv2 has an implied patent license. Here. Read this: "Potential Defenses of Implied Patent License Under the GPL" [PDF]. Here's just one sentence: "In general, patent rights may be substantially limited due to an implied license when the target infringing activity is covered by the GPL." The GPL has power, and if Microsoft is now a distributor, that power works against it. I hope everyone out there understands now the importance of GPLv3. Read the article and you'll see that even Microsoft acknowledges that it can't use the Novell deal as a template, as it wished, for other such deals, because of GPLv3. Thank you, Eben Moglen.

3. Prior art searching is better organized. The NYLS Peer to Patent Project begins in June. We're perfectly ready, and the more we volunteer to work on that project, the more we will develop skills in prior art searching. Didn't you notice that Microsoft is quoted in the article as saying that it doesn't wish to be specific about its patents, for fear the FOSS community will challenge them? Does that sound like they are sure their patents will survive a challenge? If *they* are not sure, what are *you* paying for, and sight unseen to boot? Are any of these patents court-validated? Even one?

4. What kind of companies threaten to hurt you if you don't pay them protection money? Do you want to do business with that type of company? Can Microsoft risk that inevitable reaction?

5. To actually sue, Microsoft has to sue its own customers. Microsoft itself has told us that its customers mostly use Linux too in a mixed environment. I believe SCO can provide them a useful example of how well it works out when you sue your own customers. I just can't believe Microsoft would do it.

6. The Pentagon uses FOSS. Is Microsoft going to sue the Pentagon? If it did, would it win? Even SCO knew better than to follow through with its threats to the Pentagon, and they are dumb as rocks.

7. This is, to me, Darl II: "Our precious IP is worth beeelions, and you must honor our sacred intellectual property, which is behind this curtain. We can't exactly show you or identify it with specificity, but trust me, it's worth oodles and boodles, and you are violating it. We just can't show you precisely where and how. But we don't want to sue you, so we will let you use Linux anyway, if you just sign on the dotted line and pay us for code we didn't write but we'd like to tax because it's winning in the marketplace and we don't know how to make money fair and square against it."

Notice I didn't even list large corporate friends of FOSS with large patent portfolios or OIN's patents or even antitrust law, which I've been told can trump patent law, when push comes to shove. Go to Google and type in antitrust patent and you'll see. Anybody think Microsoft might be vulnerable there?

In short, I took it that the Novell deal isn't working out as well as they thought, and maybe customers aren't clamoring for those vouchers, and it is harder to find customers than they expected, and now GPLv3 ruined their dreams of wealth from that sort of a deal, so it's FUD time! They want all the EV1's, so to speak, to sign up right away before they smarten up. Or maybe Microsoft wants to bully Red Hat into signing up for a peace agreement before GPLv3 is final. Good luck with that. But it struck me like a dog that has decided to back down from a fight which growls one last time and then slinks away. Not that one wishes to relax as long as a mad dog is in the neighborhood. You never know. And for sure we know now that the kinder gentler Microsoft was just a mask over its snout.

Of course, I'm not a lawyer. Here's one, Dennis Crouch of Patently-O:

Microsoft refuses to state which particular patents are infringed in an attempt to avoid retaliation from FOSS advocates. However, the statements certainly put Linux and its users under a dark cloud -- potentially sufficient for a declaratory judgment action under MedImmune v. Genentech (2006).

I hope no one bothers, personally. Let Microsoft sue if it wishes. If there is one thing we've learned from the SCO saga, it's that FUD doesn't kill you, so long as you know better than to give in to it. I'm not saying that Microsoft isn't a serious problem if it chooses to be annoying, but the stakes are so high for Microsoft too that I took the article as an admission that it's all over for patent peace agreements, and from now on it's Microsoft going door-to-door, threatening to bust companies' knee caps if people don't pay up. That isn't really a longterm business plan for a company that cares about its brand, particularly not after the Supreme Court has so radically altered the patent world. Microsoft's real problem in the marketplace is that folks already hate the company's business tactics. Making folks hate them more doesn't sound so smart. Even those who pay up in fear will be looking for a way to get away from a company that acts like that, don't you think? No one respects a bully. And so I take the article as a test, to see what the reaction will be more than an immediate threat. So boo loudly, please, and maybe Microsoft will get hit by the Cluetrain.

And if not, I guess Groklaw will be busy for the rest of my natural born days. I don't mind. I like doing Groklaw. And as for paying Microsoft for running a GNU/Linux system, and I do, I plan on paying them the exact amount I paid SCO.


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