Is Free Software Doomed? MS Claims 235 Patents Violated, Part 1

In what's being labeled by some as an attempt to deflect questions surrounding their floundering Vista reception and sales, Microsoft is threatening law suits aimed at open source distributors and users, claiming that Free Open Source Software (FOSS) violates 235 of their patents ... and they want royalties from it. If they get their way, free software won't be free any more.

According to Microsoft, the Linux kernel violates 42 Microsoft patents, the Linux graphical user interface (GUI) violates 65 patents, the Open Office suite of programs violate 45 patents, Email programs violate 15 patents, and other assorted FOSS programs allegedly violate 68 patents.

FOSS has a large community of developers, including large companies like IBM, and it's thought that more than half of the companies in the Fortune 500 are using free operating systems like Linux in their data centers.

Microsoft claims that it's just a matter of principle. "We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair."

The FOSS community is unwavered by Microsoft's claims. Legal strategist Eben Moglen contends that software is a mathematical algorithm and, as such, is not patentable. The fact that Microsoft might possess many relevant patents doesn't impress him. "Numbers aren't where the action is," he says. "The action is in very tight qualitative analysis of individual situations." Patents can be invalidated in court on numerous grounds, he observes. Others can easily be "invented around." Still others might be valid, yet not infringed under the particular circumstances.

FOSS also has a lot of powerful corporate patrons and allies. The Open Invention Network (OIN) was set up by IBM, Sony, Philips, Novell, Red Hat and NEC in 2005 to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux.

If Microsoft ever sued Red Hat for patent infringement, OIN might sue Microsoft in retaliation. What's kept the peace so far is the threat of mutually assured destruction -- patent Armageddon -- an unending series of suits and countersuits that would only cripple the industry and their customers.

Copyrights are typically obtained on entire computer programs and usually prohibits exact duplication of the code, but may not bar less literal copying. Patents are obtained on innovative ways of doing things, meaning a single program might implicate hundreds of them.

In December 2003 Microsoft began licensing its patents to other companies in exchange for either royalties or access to their patents (cross-licensing) and signed cross-licensing pacts with Sun, Toshiba, SAP, Siemens and others.

Microsoft refuses to identify specific patents or to explain how they're being infringed because FOSS advocates would start filing challenges to them.

Intellectual-property (IP) Attorneys have said that this is an attempt to spread fear, uncertainty, and make people hesitant to use open source software as an alternative to commercial products.

"There may be a link between the timing of Microsoft's claims against open source and the release of its Windows Vista product. Rather than add features to Vista that would make business users want to adopt it, the operating system's distinguishing characteristic is the addition of an engine that will shut down user access to Vista if they are using a counterfeit or pirated version of the software" says Stuart Meyer, partner at Fenwick & West in Mountain View, CA.

"Why do people want to want to switch to an OS that just includes new hurdles that have to be cleared?" he said. Microsoft may have decided that enforcing its IP through litigation is more important than offering innovative software that can compete on its own merits, a strategy that may leave many users unimpressed, Meyer suggested.

Not specifically identifying which patents are being violated also shows they're less that serious about initiating litigation suggesting the company knows it will be a tough battle to fight he said. "If Microsoft wanted a lawsuit, they would have brought the lawsuit first," Meyer said.

... continued in Part 2.

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