This article originally appeared in TidBITS on 2007-05-21 at 2:00 p.m.
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Microsoft Acting Like a Patent Troll?

by Adam C. Engst

In an article in Fortune [1], several high-level Microsoft executives talked about the company's plans to take on the open source world - notably Linux - on patent infringement grounds. Needless to say, attempting to go after open source developers themselves is like boxing with a cloud. And while Microsoft could theoretically try to hit up Linux distributors like Red Hat and IBM for licensing fees, the GNU Public License [2] (GPL) expressly forbids them from agreeing to patent licenses on GPL-licensed code, saying, "We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all." Microsoft's third option would be to convince large corporate Linux users to pay licensing fees, a strategy that could backfire, given that many of those companies are also big Microsoft customers and could suffer from the anger of the open source community.

Instead, Microsoft and Linux redistributor Novell came up with a clever workaround by which Microsoft bought "coupons" for Novell Linux that it could resell to customers, who would then redeem them with Novell for Linux server subscriptions. This approach avoided the GPL's requirements that Linux redistributors like Novell cease distribution if conditions of a lawsuit or patent license caused a conflict with the GPL. Some large Linux redistributors endorsed the Microsoft/Novell agreement, but the open source community reacted hotly. Work was begun on the in-progress draft of version 3 of the GPL [3] to plug the loophole that Microsoft had exploited, and potentially to make Microsoft, as a distributor of Novell Linux via the coupons, subject to the GPL.

What's most telling in this imbroglio is just how broken the U.S. patent system has become. The philosophy behind patents is entirely reasonable - as the U.S. Constitution says, it is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But in the software world, a vast number of programmers have learned in roughly similar ways and have had to solve roughly similar problems over the years, meaning that any given solution to a problem has probably been arrived at independently by many people who may have thought the work potentially clever, but not so unique that it deserved to be patented. The problem is that once a patent has been granted, it could cost millions of dollars in legal fees to invalidate, leading to a situation where it's cheaper for infringing companies to license even clearly spurious patents than it is to fight in court. I recently explained all this to a Cornell sophomore during a noontime run, causing her to exclaim, "But that's just legalized extortion!" Well, yes, and that's particularly concerning in cases where the existence of a patent is being used as a legal weapon rather than a tool for innovation.

The U.S. Supreme Court has never ruled on the patentability of software, so it's possible that Microsoft's efforts to wield its patent portfolio against open source could generate a legal backlash. The Supreme Court decision I mentioned in "Busting the Disc Link CD-ROM Patent [4]" (2007-05-07) might indicate opinions on the Court against the willy-nilly granting of seemingly obvious patents. The Court said, "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility." With software, "advances that would occur in the ordinary course" are the rule, not the exception. Another rule with software is that the advantage of coming up with an idea first is not that you can extract patent fees from other companies, but that you can be first to market and can stay six months ahead of the competition through constant innovation.

Might this affect Apple in some way? Although Apple uses a lot of open source software in Mac OS X, none of the reports I've seen have indicated that Apple is infringing on the 235 patents that Microsoft says apply to Linux, OpenOffice, and other open source programs. Of course, Apple and Microsoft agreed to broad patent cross-licensing back in 1997 (see "Microsoft is Jobs #1 [5]," 1997-08-11), so it's possible that any infringement problems have already been cleared away.

That raises another point. A friend at a large chip maker who has been granted a number of patents and who has been involved in patent licensing discussions describes them as akin to the card game War [6]. Each company starts with a stack of patents, and the companies compare the patents, one by one, until it's clear whose portfolio is stronger. The loser then pays some amount of money to the winner, and a "broad cross-licensing agreement" is signed, a press release is issued, and everyone goes home. Needless to say, this approach favors the largest of companies, since a small company could neither win the game of Patent War nor afford to pay to license a larger company's portfolio. (It also makes me wonder if anyone has created a fantasy patent trading game, along the lines of fantasy sports [7]. Although I couldn't find evidence of such a thing, I did find a number of patents covering fantasy sports [8].)

Another question that comes up is why Microsoft is exploring how to utilize its massive patent portfolio against open source now. An article in Macworld [9], from Elizabeth Montalbano of the IDG News Service, offers a number of suggestions:

Perhaps most telling is that Microsoft has merely asserted that open source software infringes 235 of Microsoft's patents. According to Microsoft, the Linux kernel violates 42 patents, Linux's user interface infringes on 65 patents, OpenOffice violates 45 patents, open source email applications rely on work covered by 15 more Microsoft patents, and various other open source applications infringe on a final 68 patents. But Microsoft has not given any further details, such as the exact patent numbers and the features or programs that infringe. Were Microsoft to provide those details or to actually file a patent infringement lawsuit based on them, things would get interesting. Without that information, there's nothing but FUD here. For another way of looking at that (summarized as the annual "Be Very Afraid" Tour), see the transcript of and comments on Eben Moglen's talk at the Red Hat Summit 2007 [11].