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Linux and Open Source

Steven J. Vaughan-Nichols & Paula Rooney

Microsoft sends mixed patent message

By | April 30, 2009, 6:39am PDT

Summary: In the wake of the Open Invention Network challenge to Microsoft’s patents related to Linux, the company’s good cop-bad cop routine has gone into overdrive.

In the wake of the Open Invention Network challenge to Microsoft’s patents related to Linux, the company’s good cop-bad cop routine has gone into overdrive.

(I found this cute fellow at a site called Funkydung for an October, 2007 piece on Microsoft’s patent strategy.)

Speaking at a panel in Singapore covered by ZDNet Asia, regional technology officer Oliver Bell tried so hard to spin the issue both ways he must have seemed in need of an exorcism.

On the one hand, Microsoft might release patents to Red Hat as part of a partnership. On the other hand “Microsoft has an interest in protecting intellectual property.” On the other hand it won’t sue open source on patent infringements. On the other hand Microsoft has an obligation to its shareholders. On the other hand Office now supports the Open Document Format.

That’s right, more hands than Vishnu. And that’s also right, I’m using more analogies than a bad Hollywood screeplay pitch. (It’s like Citizen Kane meets One Flew over the Cuckoo’s Nest.)

Burning the Ships seemed pretty clear on what the policy is, namely to use intellectual property claims in order to replicate the Non-Assertion of Patents regime Microsoft had through the last century. Patents are weapons and Microsoft is only willing to drop its under treaty.

The question is whether that message is getting through, whether it’s being received, or whether Microsoft can ever be seen as anything other than an intellectual property bully and patent troll.

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Topics

Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983.

Disclosure

Dana Blankenhorn

Dana Blankenhorn has been a journalist, writer and part-time futurist for over 30 years.

At the present moment I run only a personal blog in addition to my ZDNet open source blog.

DanaBlankenhorn.Com has the subtitle The War Against Oil. In the past I have used it to write about political history, e-commerce, personal matters, some ideas related to open source, and The World of Always On, which is the idea of using sensors, motes and RFID to turn WiFi links into platforms for applications which live in the air.

My IRA account at Schwab holds a few tech shares, most notably some Intel and Applied Materials, but there are no open source companies in it. I don’t even own any CBS stock.

Biography

Dana Blankenhorn

Dana Blankenhorn has been a business journalist for nearly 25 years and has covered the online world professionally since 1985. He founded the Interactive Age Daily for CMP Media, and has written for the Chicago Tribune, Advertising Age's "NetMarketing" supplement, and dozens of other publications over the years.

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After reading up on how they implemented it...
SpikeyMike 20th May 2009
... I think they're going to invite more scrutiny from the EU.

http://blogs.zdnet.com/BTL/?p=18317

-Mike
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same old
Linux Geek 30th Apr 2009
plain unsubstantiated M$ FUD.
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Same old,,,, useless posts by you.
No_Ax_to_Grind 30th Apr 2009
But then, no one expects you to udnerstand the issue and look at it in an unbiased manner. That would require the ability to think.
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Whereas your posts...
zkiwi 3rd May 2009
Are paragons of clear and objective thought. Or not.
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RE: Microsoft sends mixed patent message
Loverock Davidson 30th Apr 2009
The message seems pretty clear. Its basically telling linux to watch its back and that their patents are not just a free for all. Microsoft has spent a lot for R&D on patents and its not something they should just hand over because some linux people want it.
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What a load...
No_Ax_to_Grind 30th Apr 2009
Microsoft, unlike open source supporters Sun and IBM has filed very, very few patent suits and that has happened only after they tried for months (years?) to negotiate outside of court.

Take a look around Dana, MS is NOT the patent bully you want (desperately need?) to portray them as and certainly no where near the "bully" IBM has always been.

Your prejudice is obvious and its blinding you to the reality of who the patent bullies are.
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Hardware vs Software patents
NetArch. 30th Apr 2009
I would venture a guess that the majority of perceived patent violations which Sun and IBM pursued were for hardware patents, not software patents. Can anyone point to any such info or studies? It would be interesting to find out if No_Ax is right in this case.

One can't compare Microsoft to IBM in the patent game. Remember that Bill Gates himself saw the danger of software patents early on and is on record as initially against them, but eventually learned to play the game. IBM has been into patents - because of their historical early hardware focus - since the early Bronze Age. wink
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IBM and Sun both sued for software.
No_Ax_to_Grind 30th Apr 2009
Do you recall Sun suing over Java? Or IBM suing Amazon over "software" pantents. http://news.zdnet.com/2100-9588_22-149981.html

By the way, you do know it was IBM that caused it all. Software was NOT patented until IBM sued and took it all the way to the US Supreme Court and that court set the precedent for software patents, AGAINST the advice of the US Patent Office.

If you want to complain about software patents, start with good old open source supporter IBM. Ya know, as I said to Dana, open source folks need to put the kool-aid down and look at reality.
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If you are referring to the Sun/Microsoft suit regarding Java, it was a breach of contract issue. If you know of another case, list it.

As per IBM and software patents:

In the late 1960s when IBM?s internal policy was that software should not be patentable, IBM vice president, J. W. Birkenstock, chaired a presidential commission on the patent system which recommended that software should not be patentable. We expect that the other commission members deferred to IBM?s expertise on software, just as members of a commission designing an aviary would defer to its most knowledgeable member on birds: the cat.

Congress rejected this view, but three paragraphs of the Commission?s recommendations (e.g. IBM?s corporate policy) found their way into Gottschalk v. Benson, the Supreme Court Decision that limited the patentability of software. At this time IBM had 70% of the computer market, so it is not surprising that CBEMA, the Computer Business Equipment Manufacturers Association filed an amicus curie brief against software patents in Benson.

From this historical perspective we can see that the conventional wisdom that ?software has not been patentable,? should be more accurately stated as ?it was not in the interest of IBM or other computer manufacturers for people to think software is patentable.? We have never seen it pointed out in the debate on software patents that the idea that software is not patentable subject matter was formed in the crucible of IBM?s self-interest and corporate policies of an earlier time.

IBM and CBEMA have now rejected the Stallman-primal IBM view. But the damage has been done. The PTO and the industry have not taken software patents seriously until recently which explains the problems the PTO has had in examining patents and the prejudice against software inventors who assert their patent rights. Many in the software community have been suckered into believing software should not be patentable, while IBM has aggressively but quietly been getting software patents and become the company with the largest software sales.
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A long winded post agree with me.
No_Ax_to_Grind 30th Apr 2009
Thanks.
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Why shouldn't you patent your intellectual property?
Spiritusindomit@... 30th Apr 2009
I mean, if you invent something original, you should receive both credit and compensation if someone else uses your work. I don't see the problem here. If they don't *use* a patent, then I see a problem, but they don't have any patents they don't make use of so far as I know (and I've written books on the Microsoft Languages, as well as websphere and java technologies, so I'm at least a little versed.)
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Because "look" and "feel" are subjective and undefinable.
trentreviso Updated - 30th Apr 2009
It is hard to define "look" and "feel," which is the basis for the vast majority of software patents. This makes such patents essentially unenforceable, or at least very subjectively enforceable at best.

Beyond "look and feel," a large number of software patents are granted for recapitulations of very old ideas. A patent is supposed to be granted only for original, new, and NOT OBVIOUS ideas. Microsoft's FAT file system is simply a re-implementation of the same ideas behind virtually every file system which preceded it. It is not new, not original, and very, very obvious. So, it should not be patentable. And yet, it has a patent.

Eberhard Faber was once (famously) refused a patent for the idea of putting an eraser at the end of a pencil. The patent office said Faber had merely taken two existing inventions and stuck them together. It was not new, not original, and rather obvious. So, no patent.

The US Patent Office in recent years, however, has granted software patents for pretty much whatever anyone has submitted to them. MS has a patent on pulling open dialogue boxes diagonally! A few patent lawyers have made a living by submitting ridiculously broadly-worded patents, then suing everyone who violates their patents (which, of course, everyone does because everyone must!).

The situation is a morass, and beyond the possibility of fair enforcement. No question but that intellectual property is valuable. But, if we can't honestly enforce IP rights fairly, we should not pretend that we can or that we are.

Software patents just don't work. If we can't fix the system (and we can't) then we should eliminate them entirely.
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Time for a history lesson...

Rant all you like but MS has used software patents very, very little and only after having tried to negotiate out of a court room.
They on the ohter hand have been sued constantly over very questionable patents. (Click a hyperlink to launch an app. - got sued.)

Where did the patent lunacy start? Why with the open source supporter, IBM of course. There were no software patents until IBM filed suit and fought the US patent office all the way to the Supreme Court where they won and software patents were forced on everyone, against the advice of the US patent office.

You want to whine about software patents, look to your own backyard, thats where they started and yes IBM has sued dozens of companies over them.

Now for those that are not informed, try this one. The FSF has filed more law suits over IP than Microsoft. Yup, thats the truth, check for yourself.
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Why repeat yourself?
daengbo 2nd May 2009
Why bother posting virtually the same comment twice? Are you ill?

WRT the FSF, don't conflate software patents and copyright under the umbrella "IP" and then expect anyone to take you seriously in a discussion of software patents. The FSF sues over copyright issues -- people copying their software without following the license. They don't believe in or sue over software patents.

Since you obviously know this already and just tried to derail the conversation with misinformation, you are, by definition, an Internet troll. What's worse? You aren't even good at it. Get a life or get better schtick.
It'll give the EU one less reason to fine them.
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Users don't want it, thats for certain.
No_Ax_to_Grind 30th Apr 2009
Don't know of anyone that cares.
That and most people have no idea of what a file format is.
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... I think they're going to invite more scrutiny from the EU.

http://blogs.zdnet.com/BTL/?p=18317

-Mike
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No-axe-to-grind == clueless shill
whisperycat Updated - 30th Apr 2009
"Users don't want it", cries the one man MS propaganda wave. Wake up and smell the tar pit. Governments who want the best for the people they serve are not buying into Microsoft's self-serving, proprietary 'standards' bull.

In case you hadn't noticed, not only is Microsoft's software upgrade treadmill not compatible with global fiscal meltdown, people all over the world (that's everywhere that isn't North America, no-axe), exhibit a strong desire for a document standard that is future proof.

People want the peace of mind of knowing that they'll be able to read documents written today, in 10 years time, without first having to pay a greedy, foreign monopoly for access.

http://www.computerweekly.com/Articles/2009/02/26/235038/government-expands-supports-for-odf-and-open-source.htm

Seventeen national and eight provincial governments around the world have now officially endorsed ODF for document exchange.

The UK government has endorsed the expanded use of the OpenDocument Format (ODF) platform and other open source software. Under the "Open Source, Open Standards and Re-Use: Government Action Plan", the UK government will specify requirements for open standards, and require compliance with open standards systems where feasible. The government will support the use of ODF and it will also work to ensure that government information is available in open formats, and it will make this a required standard for government websites.

----

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RE: Microsoft sends mixed patent message
wheresjbob 30th Apr 2009
I hate Microsoft. I think their software is sub-standard.
However, as an American Capitalist, Bill Gates is my hero.

My love for capitalism is greater than my love for software
socialism. If you weren't smart enough to think of it - and
patent it - don't whine about having to pay for it. Everything
else is tree-hugging BS.
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Well said
jimmyed2000 1st May 2009
Unfortunately I think the good-cop is just dishing up lip service and the bad-cop reveals their true strategy:

There are many people in the open source movement who hold a ?we don?t believe in intellectual property? stance. They may, one day, find themselves sending a monthly payment to Microsoft for privilege of continuing to hold that belief.

Here's my take:

http://jamesdixon.wordpress.com/2009/04/21/microsofts-open-source-strategy-i-think/
Posted in Deception, FOSS, GNU/Linux, Microsoft, OpenDocument, Windows at 4:41 am by Roy Schestowitz

?Linux is a cancer that attaches itself in an intellectual property sense to everything it touches.?

?Steve Ballmer, Microsoft CEO

http://boycottnovell.com/2009/04/25/odf-oss-embrace-extend-extinguish/

Occasionally we see Microsoft?s people trying to get closer only to cause trouble from the inside. Take for example Jesper Lund Stocholm trying to get close to ODF. Yesterday we noticed that Microsoft's hAl is already editing Wikipedia pages for Microsoft even on OpenDocument format (which he battles against). hAl is adding links to Microsoft Web sites as references in the ODF pages. Read this for some perspective on embracing, extending, and extinguishing ODF.

Elsewhere on the Web we find Richard Waters and the Gartner Group (both consistently push Microsoft?s party line) labeling the Oracle-Sun marriage a ?culture shock?. Rob Enderle has just had his share of Oracle/Linux FUD as well.

As for Microsoft, when it is not busy sending out partners and pseudo-analysts/journalists out there, it is throwing some money at a self-serving project (for Windows only). It even calls it ?open-source? and the messenger is one of Microsoft's former pseudo-journalists, Peter Galli (he is now paid directly by Microsoft). The Microsoft crowd is immediately citing his post to play along with the ?Microsoft loves open source? storyline. Here is some love from the usual suspect in SoftPedia and some more from Mary Jo Foley.

A few months ago, Galli also used former Microsoft employees (Aaron Fulkerson and Steve Bjorg) to promote and disseminate the ?Microsoft loves open source? message, essentially by writing about MindTouch. They are still in close touch with their former employer Microsoft and sometimes promoting them. MindTouch is also a one of the key vendors who promote Mono. Now they also promote proprietary software add-ons as a business model to ?open source?. They call it ?open core?, which is further deviation from open source, let alone Free software. They ?proprietarise? the whole model (although it did not originate in MindTouch). Embrace, extend, and extinguish?

An Open Core Licensing Model

There is a concept of an Open-Core License (OCL) model for building a business on open source that is growing in popularity among open source companies.

For quite some time now, Microsoft ? via its Port 25 people ? [cred 3762 has promoted this idea of "hybrid"] and now we see it coming from former Microsoft employees who claim to be in ?open source? and proliferate .NET. Whether it?s deliberate or not, they are likely to be stealing open source, trying to change it for Microsoft?s convenience. ?

?I would love to see all open source innovation happen on top of Windows.?

?Steve Ballmer, Microsoft CEO

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