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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, 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 OINís 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, 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

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

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