Linux patent suit: In search of the Microsoft smoking gun

Linux patent suit: In search of the Microsoft smoking gun

Summary: Now that the "first ever" suit for patent infringement has been lodged against two major Linux distributors, many Microsoft watchers are looking for the smoking gun that will somehow connect Microsoft to the case. So far, at least, that gun is nonexistent.

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Now that the "first ever" suit for patent infringement has been lodged against two major Linux distributors, many Microsoft watchers are looking for the smoking gun that will somehow connect Microsoft to the case.

Linux patent suit: In search of the Microsoft smoking gunI have to say that it's hard to believe that Microsoft CEO Steve Ballmer's recent railings about the likelihood of someone suing Red Hat for patent infringement were purely coincidental. His timing makes it look like he had knowledge that such a suit was in the pipeline. But so far, at least, there's no proof that Microsoft was behind this case in any way.

However, there are still some interesting Microsoft connections to the suit, which pits IP Innovation and Technology Licensing Corp. against Red Hat and Novell. The suit claims that IP Innovation has rights to patents covering "a user interface with multiple workspaces for sharing display system objects" (patent no. 5,072,412, issued on December 10, 1991), as well as two other similar patents upon which Red Hat and Novell allegedly infringe.

So where and how does Microsoft enter the picture? As Pamela Jones of Groklaw.Net fame pointed out, IP Innovation LLC is a subsidiary of Acacia Technologies Group Inc. Acacia is "in the business of acquiring, developing, licensing and enforcing patents." From the Acacia Web site:

"We help patent holders protect their patented inventions from unauthorized use and generate revenue from licensing and, if necessary, enforcing their patents. Our clients are primarily individual inventors and small companies with limited resources to deal with unauthorized users but include some large companies wanting to generate revenues from their patented technologies."

Is Microsoft an Acacia client? There's no press release I can find stating that it is. (I've asked Microsoft whether it is, but no word back yet.) Ironically, Novell is an Acacia client, (as of August 31) but on the storage side of the business, not the Linux one.

Update: Microsoft's official response to the Acacia/IP Innovation suit, via a company spokesman:

"Microsoft is not a party to Acacia's lawsuit against Red Hat and Novell, nor are we involved in any way in this litigation."

Now here's where things get interesting: Acacia has hired two Microsoft veterans in the past year. On October 1, Acacia hired Brad Brunell, who most recently served as Microsoft's General Manager of Intellectual Property Licensing, as a Senior Vice President. In July, Jonathan Taub, former Director of Strategic Alliances for Microsoft's Mobile and Embedded business unit, joined Acacia as a Vice President.

Brunell's background is especially noteworthy here:

"Mr. Brunell, as General Manager, Intellectual Property Licensing, was responsible for inbound and outbound patent licensing. He created and managed a team of negotiation, financial and legal experts which developed outbound intellectual property licensing programs and brought in intellectual property via acquisitions, strategic partnerships and licensing.

"Previously as a Senior Director he was in a strategy role focusing on digital media adoption which included key deals with Time Warner and the Walt Disney Company, leading the negotiating team for the settlement of the Intertrust patent litigation, and putting together the Content Guard ownership structure between Microsoft, Time Warner and Thomson. He also served on the board of Content Guard, a digital rights management patent licensing company."

All this said, there are a couple of things that don't add up, if you're looking for ways Microsoft might be connected to this lawsuit. Why would Microsoft want Novell, its favorite open-source-partner poster child, to be dragged into this? Why not get Canonical or Mandriva or one of the other holdouts who've refused to sign patent-protection clauses with Microsoft named, instead? Stay tuned, as the West Coast wakes up, for more on this one....

(bang bang (#118). Image by j / f / photos. CC 2.0)

Topics: Operating Systems, Enterprise Software, Legal, Linux, Microsoft, Open Source, Software

About

Mary Jo has covered the tech industry for 30 years for a variety of publications and Web sites, and is a frequent guest on radio, TV and podcasts, speaking about all things Microsoft-related. She is the author of Microsoft 2.0: How Microsoft plans to stay relevant in the post-Gates era (John Wiley & Sons, 2008).

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102 comments
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  • This is why Novell ...

    The Microsoft Novell deal wheels are starting to come off

    "It is particularly relevant given that, according to Novell?s NTAP information, Microsoft?s covenant not to sue Novell users will be extended to ?all GPL v3 users as soon as GPL v3 code is integrated into SUSE Linux Enterprise.?

    That statement runs contrary to the claims made by Microsoft in July ... http://tinyurl.com/33my4g
    n0neXn0ne
  • MS will be the Novell savior.

    [i]Why would Microsoft want Novell, its favorite open-source-partner poster child, to be dragged into this?[/i]

    Maybe they want to come riding in on their white horse to save Novell from the evil Patent Trolls. It sure would make a great selling point. Then they could say, hey RedHat. If you sign this Patent Protection deal for umpteen gazillion dollars, you will be protected. Then they can go to all the other distros and extort money from them too.

    Look for an article in the not so distant future where MS says they are shielding Novell from this lawsuit.
    SoToasty1
    • don't forget -

      Microsoft would rather see all the others file Chapter 7 (or at least Chapter 11). How's that song go... 'never smile at a crocodile'?
      zoroaster
      • token competition

        kill the competitors and keep the token "insert name of useless unheard of distro here" as the official competitor to prevent DOJ house calls.
        Hrothgar - PCLinuxOS User
  • Even if...

    Even if there is a Microsoft connection here we may never know. After it was shown that MS was behind the SCO extortion attempt I'm certain they would make sure that there would be no visible links in future attacks.

    This would be the perfect strategy for MS. Have others do the dirty work. This way MS doesn't sue thus avoiding exposing any of the skeletons in their closet through a counter-suit.

    As far as Novell being a target, maybe this is a shot across Novell's bow concerning future adoption of GPLv3 as that license throws a huge monkey-wrench into MS' plans to co-opt Linux vendors.
    Tim Patterson
    • You can be damn sure that

      someone somewhere is digging right now for the smoking gun... and if it comes out. Oh man, gonna be a shootout in Dodge. ]:)
      Linux User 147560
    • Even if...

      Red Hat and Novel have the Right to face the accuser and they can request full public disclosure. Acacia will have to disclose who the Client is and show that the client requested the action. They can not sue anyone for something they (Acacia) does not ownor have rights to.
      If the patient owner of no. 5,072,412, issued on December 10, 1991 is Microsoft then they are the clients.
      aussieblnd@...
      • Owner of patent

        According to the patent office the owner of record is Xerox. Whether they sold it to MS or not they created it.
        Go to the patent office and search when you have a patent number or other technical detail.
        Endoscopy
  • Suspicious mind.

    For months if not years Mr. Ballmer has been speaking often of IP infringements by open source, including Linux specifically.

    Mr. Ballmer makes one more reference and a brief time later a company files suit against Linux.

    Of course, that's likely proof Mr. Ballmer ordered the suit.

    However that sounds, I'm paraphrasing:

    "I have to say that it???s hard to believe that Microsoft CEO Steve Ballmer???s recent railings about the likelihood of someone suing Red Hat for patent infringement were purely coincidental. His timing makes it look like he had knowledge that such a suit was in the pipeline. But so far, at least, there???s no proof that Microsoft was behind this case in any way."

    I guess my mind is insufficiently suspicious.
    Anton Philidor
    • If Microsoft did have a hand in this

      then they aren't being clever they are being incredibly hamfisted and stupid.

      2 former Microsoft employees working for this company?, the litigation guy only joining a month ago?, it's hardly Machiavellian is it?

      Does the DOJ still keep an eye on Microsoft, or have they been totally castrated power wise?.
      BobF_z
      • Undercover operation

        Why would an organization which makes money by licensing IP have to hire Microsoft representatives before it could continue to do so?

        Did Mr. Ballmer say, "Okay, we'll help, but only if I can send some of my people to watch you every step of the way."?

        Or were these people sent in surreptitiously to help without anyone suspecting they might be advancing the interests of Microsoft.
        "And don't tell anyone you worked at Microsoft."
        "What's Microsoft?"
        "Perfect!"


        Enough people have left Microsoft and taken employment elsewhere for that not to be suspicious in itself.
        Anton Philidor
      • Has the DOJ been castrated?

        Obviously Yes. The MFJ (Modified Final Judgement) seems, in my opinion, to have been written by and for Microsoft: After a lot of talk about "don't penalize OEMs, on the basis of price, for things they do with other vendors' software" it left the door wide open for Microsoft to reward and punish, at will, via REBATES.
        The amount of Microsoft "co-marketing" money which they "negotiate" with the OEMs is entirely up to Microsoft, and isn't monitored for abuse by the Court or the DOJ.

        They still abuse their unregulated monopoly power, obviously: And this "co-marketing" money is exactly why you NEVER, EVER see a Linux PC offered for sale at ANY big-box electronics store.
        - - - - -
        You might find it interesting that Microsoft contributed a 5-figure campaign contribution to John Ashcroft for Senate. (He lost to a dead man, but was installed as Attorney General afterwards.) MS was also a *huge* contributor to the GWB campaign. I feel that they definitely got a great return on this "investment".

        I think that The DOJ (and for that matter, the FDA, and a number of other Federal agencies) doesn't work for you anymore-- it works for campaign contributors.
        Rick S._z
        • No

          more like paid off. ]:)
          Linux User 147560
        • I think the MFJ, as you say, was because of the MMR

          It was a case of zealotry, displayed by the judge himself, calmed and fair justice applied by a more responsible administration. With Janet Reno's record, i'd be a bit hesitant to say the next administration downplayed anything.
          <br>
          the MMR (modified monopoly requirements) were not legal to begin with and the whole thing was political from start to finish. You have several wannabes going to the courts over and over and none of which had a competing OS that I know about. I'm not sure why the anti trust part came in and was narrowed to one platform in which there was no competition to begin with and all other desktop computer makers conveinently put in another category and declared non viable systems. those are jackson's words. I wonder then, is OS X still a non viable OS? Especially now that it's running on intel. Is Linux a non viable OS? And if so, what's that got to do with Microsoft. That OS was not ready for prime time until within the last year or so and even then it's not ready according to as many or more people than those that say it is.
          <br>
          So Microsoft was charged as a monopoly against non existent competition and the evidence was applications? Meanwhile QT, Java, Abobe and Google dominate much of the IT space for web apps and in some cases approach a monopoly. Who has contended with Flash until Silverlight (which is great btw and everyone needs to see a demo. Check out www.ddjvista.com.
          <br>
          The judge was an overzealous biased one shown to be unfit for the bench and the whole thing was a huge mistake in terms of law being applied. We've seen real monopolies and have them right now. AT&T was a real monopoly, they had 100% of the market and held all customers captive to their services. THAT is a monopoly and it was granted by the U.S. government. The postal service is another example of a monopoly since it also has 100% of the mail delivery market and competition is illegal. There are many other examples in which a monopoly has 100% market and competition is illegal. <br>
          By definition, Microsoft never was and never will be a monopoly. <br>
          So as for LU's comment's, maybe he should consider that Microsoft built and earned it's market against competitors, not handed to them by the government. Like SUN for example....but they don't count cause they were unable to use governemnt backed startup and market into anything all that successful.
          xuniL_z
          • A few points:

            There are Open markets and Closed markets.

            For example, the old Soviet Union was a closed market. I've seen photos of a Soviet factory
            for making fluorescent lights.

            Broken glass everywhere ! Terrible inefficiency.

            But it's not like they would just BUY their fluorescent tubes from Europe, oh, no. That would
            be admitting that Communism is terribly inefficient at motivating people and providing
            services.

            As you mention, the US Postal Service was a Government Monopoly. That was another
            example of a Closed market.


            Of course, the Postal Service isn't really a monopoly anymore. FedEx will deliver letters and
            packages for you at competitive rates.

            I think Government monopolies should be very limited, but in a new market where you
            desperately NEED to establish acceptable standards, a limited-time monopoly may actually
            help buffer the effects of "market forces".


            Now, then, there are the much more common "Open Markets".

            In an open market, supposedly independent companies work to satisfy their customers and
            compete with each other.

            And it's illegal for competitors to join together in "price fixing" or other anti-competitive
            activities.

            Microsoft was accused, and found guilty, of using their influence anti-competitively.

            Many people testified under oath that their companies had been intimidated by Microsoft.

            The most famous example is the threat to discontinue selling Windows OEM licenses to
            Compaq.

            At the time, there was NO credible alternative OS that Compaq could just drop in and
            continue business as usual.

            Compaq couldn't run Mac OS, even if Apple had agreed to help them.

            Linux? It's 2007, it's been about ten years since that happened. Maybe Linux is
            strong enough NOW to compete, but is it friendly enough?

            I mean, most people don't want to have to re-learn a command line!

            (Fortunately my DOS nightmares have finally ceased.)

            Then of course, BE OS was ported to Intel in March 1998.

            If I were the CEO of Compaq, I don't know if I would have taken that leap, even though I think
            BE OS was pretty good.

            So there's no question that Microsoft used their power to intimidate and dominate.

            The only question is, why do some people insist on white-washing history?

            http://www.pbs.org/cringely/pulpit/1998/pulpit_19981022_000588.html
            Jkirk3279
          • good post but

            You don't have to "re-learn the command line" to use Linux, I very rarely need the command line on my Linux workstations, and as a matter of fact I tend to be on the "DOS" command line on XP more.

            With Vista I see MS has now added symbolic links, so even Microsoft don't consider the command line to be dead, as a matter of fact in corporate environments it's where I seem spend most of my time, if you want to set up scheduled jobs for instance.
            BobF_z
      • DOJ still keep an eye on Microsoft

        " have they been totally castrated power wise?. "

        They Got the Chop and now have very high squeaky voices!
        aussieblnd@...
    • Not really...

      [B]"I guess my mind is insufficiently suspicious."[/B] - Not really Anton, you just have an excellent ability to not see what is in front of you.]:)
      Linux User 147560
    • Do some maths

      Several sums in fact.

      First a subtraction sum: take MJ's query of Microsoft regarding whether they are an Acacia client. Take away their lack of denial in their response = they are an Acacic client and therefore a large one.

      Then add up all the value in the claim (approximmately 0 even in a court which favours IP holders) and measure that against the cost of making the claim = no benefit in filing with no realistic expectation of winning.

      Then look at the best value result in a court that decides to favour ta claim based on this patent. You could sue IBM, MS and Apple (loads of money, likely to lend weight to the suit) or go after Redhat and Novell (comparative minnows).

      So the gains have to be in something else. Like "be nice to us we're your biggest client"; like "find something, anything to make a case against some of those nasty open source companies for us and weaken their defences".

      Those who don't quite understand: Microsoft cannot make their claims in a court without near certainty of winning. Previous claims, preferably successful, will lend weight to a case and definitely lend PR weight to their wild claims about infringements. The reason they cannot make their claims? Because the other side waits, holding far more patents than Microsoft - one claim against open source (or 235) = thousands of claims against Microsoft.
      putt1ck
      • Acacia makes money by licensing IP, no?!

        So if Microsoft is a "client" the company has either hired Acacia to collect licensing revenues, or is paying Acacia. If Microsoft has hired Acacia to negotiate, that would be easy to establish, and Microsoft might as well have the disadvantages of suing for itself. If Microsoft is paying Acacia for IP, that would also likely to be easy to identify, and, again, not improve the PR situation.

        Then, Microsoft might have no connection with Acacia. Though, as with SCO, the company might be willing to make referrals.

        Of all the permutations, expressed mathematically or not, the Acacia is a front for Microsoft possibility is perhaps the least likely.
        Anton Philidor