What if Linux does infringe on Microsoft intellectual property?

What if Linux does infringe on Microsoft intellectual property?

Summary: There have been a lot of words written about the comments made by Microsoft's CEO Steve Ballmer during a Q&A session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle last week (you know, where he said that Linux used intellectual property patented by Microsoft).

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TOPICS: Microsoft
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There have been a lot of words written about the comments made by Microsoft's CEO Steve Ballmer during a Q&A session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle last week (you know, where he said that Linux used intellectual property patented by Microsoft). 

Most seem to think that the claims are nothing more than FUD on the part of Microsoft and that nothing will come of it.  But here's a thought to ponder - what if it's true and Linux does indeed infringe on one of more of Microsoft's patents?

You have to admit that there's at least a chance that Linux does indeed infringe on Microsoft's patentsCome on, no matter how much of a Linux fan you are, you have to admit that there's at least a chance that Linux does indeed infringe on Microsoft's patents.  After all, Microsoft does hold a lot of patents and while Linux is open source and we can all take a look at the source code, only Microsoft has access to most of its source code so it isn't all that difficult for it to prove – to itself at any rate – that there are IP infringements contained in Linux.  After all, before IBM handed over some 500 patents to the open source community, it's pretty clear that Linux was infringing some of them.  Given that, why is it so hard to believe that the same isn't going on with Microsoft?

[poll id=35]

Some have called on Microsoft to come clear on what the infringements are (Mary Jo Foley, my blogging colleague here at ZDNet has written a couple of posts along those lines).  That would certainly be interesting but there's no reason for Microsoft to do this.  It would dismiss the speculations about the claim being FUD, but it wouldn't achieve anything else.  Microsoft can just sit on this information and use it as leverage in deals that it wants to cut or future legal action that it might feel it needs to take.  After all, the Open Invention Network has said it is ready to leverage the IP portfolio that it has accumulated to maintain the open patent environment.  Why shouldn't Microsoft do the same to protect its business model?  It might not be the "nice" thing to do, but this is business after all. (And if you don't like that, consider how you'd feel if whoever is heading the company you work for started taking their eye off the business ball - I bet you'd spend some time updating your résumé, just in case!) 

But what would it mean to Linux users if the operating system they use infringed IP belonging to Microsoft?  Well, I'm pretty sure that it would mean absolutely nothing to all the geeks that use Linux for personal and home use.  I don't see Microsoft ever knocking on anyone's door looking to collect a "Linux tax", it's just not worth the hassle.   

But what about commercial uses of Linux?  There things could be different but I still see the courts being a long way off.  No doubt Microsoft could bury the competition in legal paperwork and just sit back and wait for them to go bust, but that would do nothing but generate a shed-load of bad press.  The best thing that Microsoft could do would be to sit on this information and use it to cut deals - or use it to generate goodwill and donate the patents to the open source community…

... did I just see a pig flying past my office window?

Topic: Microsoft

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  • Microsoft has taken much from *nix/Linux

    Microsoft would be foolish to kill off an OS that they have adapted much from. Linux is a very flexible OS, and being open source, much in the way of new inovation that eventually finds it's way to other OS's starts out in *nix/Linux OS'es.

    The idea for Windows -- Taken from the Xerox Parc/Star and *nix X11

    The idea for Vista having limited user accounts,
    -- Taken from *nix/Linux

    Many other ideas for Vista taken from SELinux.

    Many of the ideas for internet explorer -- taken from netscape on *nix.

    Many of the ideas for media player taken from real-player/quicktime/etc.

    Zune from itunes.
    (OS-X is based on BSD, which is *nix)

    Much of the feature set for OS related items, for NT/XP/Vista, taken from Posix standard.

    Microsoft may beat the Marketing drum loudly, but they aren't always the most original when it comes to new ideas. They should let those that hear a different drum, go and explore, un-fettered, so that we all have a richer, fuller experience.
    wwm1234
    • What about Tandy and Xenix

      Well said... Bill has taken alot from nix and add to your list the fact that he hosed Tandy by writing Xenix for them. It still looks to me that exchange came from xenix???
      kdnoel
  • Luckily

    This is merely a US problem, and the more happens on this front in the US the less likely it is that software patents are implemented in the EU.

    Way to go MS...

    One interesting thought though. If the Linux vendors move to those countries that don't enforce software patents, MS would end up suing customers, and my guess is that's just a bridge to far, even for MS.
    tombalablomba
  • Stupid shill

    Direct from Redmond's ecosystem, a spineless worm currying favor with its better.
    joeaaa8
  • Software Patents are evil!

    I hate to agree with the immediately above poster but under the circumstances infringing on M$'s patents (yes I am a Microsoft hater) is almost certainly way too easy, even in projects outside of Wine and Mono. Software patents are not a reliable indicator of serious work. While I am aware that some people do not consider Groklaw an informative place, they have an interesting thread on a patent granted to someone who used pointers for a database.

    http://www.groklaw.net/comment.php?mode=display&sid=20061122194903923&title=USPTO+insanity+continues&type=article&order=&hideanonymous=0&pid=507921#c508172

    As one poster pointed out, this <a href="http://www.patentstorm.us/patents/7028023-fulltext.html"> patent </a> covers something which was taught in my first semester computer class and may have been taught in yours. Our system is broken and if you can treat M$'s latest gaming on it seriously, then you are spreading fear, uncertainty and doubt. You should be ashamed of yourself.
    jplatt39
  • Finally someone that understands Microsofts patent problems!!

    Microsoft probably does have patents that some judge somewhere would find that are somehow used in Linux. But, it is also true, that Microsft probably is vilolating patents owned by IBM, Sun, Novel, or somebody else, and some judge somewhere would rule against Microsoft. Just the reality of how bad the software patent system is, and how really "obvious" things can be patented.

    But, the problem for Microsoft is that using them to sue RedHat and/or other GNU/Linux distributors, would just cause heaps of bad press and bad feeling about Microsoft from their customers, many of which are using Linux. And, in the end, most of the infringing code could be replaced by code that uses a different algorithm, or solved by eliminating a feature that is not all that important. All of the basic OS concepts have prior art and are in the public domain, or previous patents have expired. So, yes, Microsoft may be able to kill RedHat, but another company would rise out of the ashes with a modified kernel that does NOT violate the patents from Microsoft, and service former RedHat customers. So, the only ones losing would be RedHat shareholders, it would make Linux stronger. But, also remember that others might then file patent lawsuits against Microsoft.

    Don't forget the Soaris trump card either. Sun WILL release it under the GPL, allowing Linux drivers and other things to be moved over, and all of a sudden we would have another great solution that could replace Linux. The current management at Sun understands very well how to use the GPL to keep MS caged.

    So, as the author points out, even if Linux violates some MS patents, it does NOT matter. Microsoft will only use this for FUD and cutting deals. Period. The last thing MS wants is to have the intelectual property issues with Linux straightend out so that people do not have to worry.
    DonnieBoy
  • IP infringing

    This IP system is bad. It is looking more like a feudal system with iobags tied to the feudal property.
    To joke about one of your last phrases: your "office" is MSFT's IP and your "windows" are the same.
    razvanone
  • Patent exchanges...

    ... are not limited to open sourcers. If Microsoft donated its patents the company would have less to trade with other companies. So that flying pig you saw would be costly.

    You're right, though, that saying nothing specific and being open to IP trading does Microsoft far more good than acting on the patents in Court. The company's efforts on interoperability would be perceived as hollow, for one thing.

    And Linux use can be helpful to Microsoft. The replacement for Linux might be a more effective, better funded competitor. And companies which migrate from Unix have taken a step in the right direction. Toward Windows. Or so Microsoft can see it.
    Anton Philidor
  • FUD, FUD,FUD, FUD... Enough with the FUD Already

    From the same mouth of a Linux basher... yes, I'm talking to you.

    Microsoft stole every single idea from others, as well as acquired companies for 'innovation'. It's an intimidation tactic.
    schestowitz
    • I don't think he is necessarily on the side of Microsoft. He admits that MS

      could gain very little trying to enforce patents, even if any exist that GNU Linux infringes on.

      He even states that probably the best MS can do with the patents is create FUD and try to do deals that help create even more FUD.
      DonnieBoy
  • Mutaually assured destruction

    If the M/S juggernaut decided to enforce any patents/IP claims against Any Linux vendor, do you think the vendor would go quietly into that dark night? They would certainly file a counter-claim for similar infringement. M/S cannot possibly be spotless(!) in the areas of IP and patent infringement, and the resulting disclosure (under subpoena/discovery proceedures) of propritary source code would do at least equivalent damage to M/S as to any given Linux vendor.
    Linux is too widely distributed to be "killed". The very nature of open source ensures it's survival. The same cannot be said for proprietary software.
    M/S, will, for better or for worse, remain with us for the foreseeable future. But so will all things open source. And the balance of power (read: marketshare) will continue to shift toward open source for some time to come.
    handydan918
  • MS infringes on everything it can

    ms has a history of taking what it wants (even the department of justice). Just take a look at their history. Most recently, the SCO thing. Anyone who believes ms had nothing to do with that has been living in a cave somewhere. And from their dark distant past the book "The Making of Microsoft" has many telltale examples of how this monoploly grew from a tiny group of well-meaning programmers to a giant entity resembling, in essence, Rabbi Loew's Golem - which was originally created to help society, and later when empowered, became violent and started killing people. From the book (The making of ms, mentioned above), in the beginning, the creators of ms used BASIC (invented by John Kemeny and Thomas
    Kurtz in 1964 when ms' founder was in the 5th grade at a private school for the very wealthy
    in Washington state). In order to make BASIC work on the intel processor, they (ms) had to start
    somewhere and they started by reading manuals describing the function of the 8080 chip. Who wrote those manuals, and where did they get them?
    They had all the info they needed from sources they readily acquired. The creators of ms
    worked on porting basic to the Altair (p22); and around 1975 ms succeeded ported BASIC to
    the Altair (one of the first computers available to the average person) and then locked it up in a contract between Ed Roberts and their newly formed
    company microsoft. This contract further stipulated that Roberts (Mits Altair)
    would promote the sale of ms basic to others.

    When the two kids finished tinkering with
    BASIC (they even used the name BASIC for "their original program") and when they had modified it to match the intel processor they claimed ownership and creatorship of both the program and the name. They stood
    on the shoulders of giants and then buried them and took credit and money for the creation.
    Yes the two whizz kids were hackers but not the "best". A programmer from TRW was better.
    and one of them admitted that (p13).

    When ms discovered its modification
    of the BASIC language was being "pirated" they were furious because others were pirating
    "their" basic (p22, p30) as if they and they alone created it - one must wonder; did they give any part of their profits to Kemeny and Kurtz? By 1983 ms basic sold more than 1000000 copies.

    MS took credit for "writing" fortran(p35). They did not, they simply
    ported it. Fortran was developed at IBM in the 50's and 60's before ms and its founder was born. See
    wikipedia. In 1974 (p 15) the 8080 was released. MS discussed writing
    "A BASIC" for that chip. BASIC already existed - they needed to "port" it to the 8080.
    MS took Fortran, Pascal, and cobol; and ported these languages also, then took
    credit for them. Fortran was developed at IBM, Pascal by Professor Niklaus Wirth in
    the 70's http://www.inf.ethz.ch/personal/wirth/ ; and decended from Cobol Designed by
    William Selden, Gertrude Tierney, Howard Bromberg, Howard Discount, Vernon Reeves and
    Jean E. Sammetand furthermore Cobol was descended from the Flowmatic language designed
    by Dr. Grace M. Hopper http://cs-www.cs.yale.edu/homes/tap/Files/hopper-story.html.

    The operating system CP/M, created by Gary Kildall was sucked up by ms also in the
    70's(p50). This was absorbed into Qdos created by Tim Patterson for the 8086
    in 1980 and the result spewed out as msdos later(p75). Half of the revenue of
    ms then came from MSDos (p93).

    As far as software applications (p48), Apple came first. Visicalc was the first very
    successfull software application. (VisiCalc p101. SuperCalc 104.)
    When ms started excel they took a close look at both of these. Visicalc was the first spreadsheet
    program not ms excel.

    Palo Alto research center developed the mouse and the gui which apple advanced and ms promptly
    manged to steal partially with the help of the legal system, partially by hiring the main programmer
    who worked at PARC on "Bravo" a wysiwyg word processor (p104,105). They (ms) ended up at first with
    "multiplan" (p107). PARC Palo Alto Research center Xerox pioneered icons, select and click and
    mouse in the 70's; not ms, but they took it and ran with it (p144,145).
    Apple and ms met in 1981 and (supposedly had the same idea about the gui);then
    ms enticed Apple to collaborate on the gui. MS developed Basic for the 6502 processor used by Apple and locked Apple up with a license for basic; and then took Apple to court and to the cleaners in 1987 over MacBasic (see A copy of the wall street journal sept 25 1987)
    and forced apple to not develop macbasic because it would compete with msbasic. This is only the tip of this ugly iceberg that is slowly sinking the creativity and freedom of people everywhere. I sincerely hope this huge ugly blob of ms decays away to nothing before they succeed at controlling the entire worlds intellectual freedom and all its creations.
    edvac
    • MS infringes on everything it can

      Microsoft has a history of using other peoples code and IP and incorporating it in their own products. MS then claims that since it is part of their product they own the rights to the technology. Microsoft used the P2P code that IBM wrote in OS/2 and then claimed they owned it.
      rshimizu129
  • What if it does?

    There is at least a chance MSFT was the first to file patents on some technology -- it was founded by a lawyer's son. However, just because the patent office accepts an application does not mean it is enforceable. Patents for ideas that were already in use, or already in the public domain, are examples. What makes MSFT a dominant company? MS-DOS, which came from CPM. Windows, which came from Apple or Xerox/Parc. Excel, which came from 123 or Visicalc. Internet Explorer, which came from Netscape or Apache. All of MSFT's most valuable technologies were created by someone else -- the patents are not enforceable.

    As for Linux, AT&T had most of Unix in the public domain for years. Linux was then developed independently from that. Again, a patent on something in the public domain is not enforceable.

    What if MSFT has some patents? Who really cares? MSFT can spend its entire cash hoard on patent lawyers and will still end up in exactly the same place as SCO.

    The news media might be intimidated by Ballmer, but ORCL and IBM are quite knowledgeable about patent law (IBM still has the greatest number). They know this is a bluff. As this story develops, more people will recognize it as a bluff-- one that ultimately makes Ballmer and MSFT look very weak and desperate.
    oh_please
  • Linux violates at least *one* patent

    I checked. [url=http://www.patentstorm.us/patents/7028023-fulltext.html]Patent #7028023[/url], to be precise.

    Now that one's assigned to LSI, but I'm sure that Microsoft has quite a few similar ones. Of course, it's [b]almost[/b] certain that Microsoft is violating #7028023 as well, but since their code isn't available for the world to see we'll have to wait for trial to be sure.
    Yagotta B. Kidding
    • Prior users of a patent are exempt, *nix/Linux have been arround since '68

      If you were using something in a patent, and can show you were using it before the filing date, In this case 2002, you are allowed to keep using it. In this particular case, since Linux has been around since 1990, and it's source is placed in the public domain, under GPL, what LSI has is a Worthless Patent, and the patent office has some examiners that need more training!
      wwm1234
  • This comment system sucks (excuse my bluntness)

    Apart from the site being slashdotted and trying to navigate the comment system, I forgot what I wanted to comment.

    In any case, I think the author is correct. MS knows it is already seen as a large evil corporation , the antitrust problems in US (now under control) and in Europe - they don't want anymore negative publicity.

    Nothing is to be gained, not even financial since the opensource community doesn't even have a dime compared to MS's bank account.

    Most educated people already know that the majority of software patents are invalid and incorrectly granted. The only group that makes out from litigation is the patent lawyers.
    areu
  • This comment system sucks (excuse my bluntness)

    Apart from the site being slashdotted and trying to navigate the comment system, I forgot what I wanted to comment.

    In any case, I think the author is correct. MS knows it is already seen as a large evil corporation , the antitrust problems in US (now under control) and in Europe - they don't want anymore negative publicity.

    Nothing is to be gained, not even financial since the opensource community doesn't even have a dime compared to MS's bank account.

    Most educated people already know that the majority of software patents are invalid and incorrectly granted. The only group that makes out from litigation is the patent lawyers.
    areu
  • Knowledge of others' infringement as leverage? NO!

    To quote: <i>"Some have called on Microsoft to come clear on what the infringements are. ...there's no reason for Microsoft to do this. It would dismiss the speculations about the claim being FUD, but it wouldn't achieve anything else."</i>

    I beg to differ. It remains to be seen in the outcome of SCO v. IBM (and may not even be decided there, anyways, since IBM is seeking Summary Judgment on other grounds) but (IANAL) I believe that when Microsoft hides the infringing code they are aiding and abetting the damages they allege themselves to be suffering.

    That said, given the "doubly-linked-list" patent the USPTO just issued this week (to a loud chorus of geek sneers), perhaps they're keeping us from seeing what con artists they've been -- and what dupes the USPTO has been. We already think MS is evil but this would be evidence of meanness and mental cruelty to non-geeks as well. Sort of like the riddle about someone collecting on a bet against a goal being scored and collecting again on the instant replay. And if those patents are like that, they would certainly become items #1 through N on the patent-debunking targets wall of PubPat et al.

    Furthermore, given the treble damages in knowing infringement, perhaps Microsoft is doing the open-source community a favour by not revealing what patents are being infringed. (Blech. I feel slimy just saying that.) How many of us want to have to avoid certain sections of newspapers and news web-sites just to be able to continue to develop software?

    My employer holds a patent portfolio, claims that it gives us "freedom to innovate". I can only stomach that rhetoric (just barely) because large corporations (like my employer) need that sort of thing, like soldiers need armored vests.

    But bear in mind that in these wars of software IP, in the biggest war ever over Operating System content, the aggressor proved to be the guiltier party (I'm referring to USL v. BSD). The chicken that squawks the loudest, perhaps?

    No. Microsoft had best come clean, make what claims they can, suffer the possibility of having any stupid patents in their portfolio struck down and find other ways of doing business before this strategy leads to the same fate that SCO will eventually suffer.
    ansak
    • Repost: formatting better?

      What a mash-up that was! Let me try again adding paragraph tags that the page didn't say was supported!

      <p>To quote: <i>"Some have called on Microsoft to come clear on what the infringements are. ...there's no reason for Microsoft to do this. It would dismiss the speculations about the claim being FUD, but it wouldn't achieve anything else."</i>

      <p>I beg to differ. It remains to be seen in the outcome of SCO v. IBM (and may not even be decided there, anyways, since IBM is seeking Summary Judgment on other grounds) but (IANAL) I believe that when Microsoft hides the infringing code they are aiding and abetting the damages they allege themselves to be suffering.

      <p>That said, given the "doubly-linked-list" patent the USPTO just issued this week (to a loud chorus of geek sneers), perhaps they're keeping us from seeing what con artists they've been -- and what dupes the USPTO has been. We already think MS is evil but this would be evidence of meanness and mental cruelty to non-geeks as well. Sort of like the riddle about someone collecting on a bet against a goal being scored and collecting again on the instant replay. And if those patents are like that, they would certainly become items #1 through N on the patent-debunking targets wall of PubPat et al.

      <p>Furthermore, given the treble damages in knowing infringement, perhaps Microsoft is doing the open-source community a favour by not revealing what patents are being infringed. (Blech. I feel slimy just saying that.) How many of us want to have to avoid certain sections of newspapers and news web-sites just to be able to continue to develop software?

      <p>My employer holds a patent portfolio, claims that it gives us "freedom to innovate". I can stomach the rhetoric, just barely.

      <p>Bear in mind that in these wars of software IP, in the biggest war over Operating System content, the aggressor proved to be the guiltier party (I'm referring to USL v. BSD). The chicken that squawks the loudest, perhaps?

      <p>No. Microsoft had best come clean, make what claims they can, suffer the possibility of having any stupid patents in their portfolio struck down and find other ways of doing business before this strategy leads to the same fate that SCO will eventually suffer.
      ansak