Microsoft may become 'major opponent of patents'

Microsoft has been a major proponent of software patents, securing some 3,000 over the last 20 years but open source experts now claim that far from profiting from the system, the software maker may actually become a victim.

Speaking at the LinuxWorld conference in London on Wednesday, Mark Shuttleworth, founder of the Ubuntu Linux distribution, said that although Microsoft is seen as being very pro-patent at the moment, if every other software maker enforced its patents in the same way then Microsoft would find it very difficult and expensive to do business.

"I think in ten years you will see Microsoft become a major opponent of patents and we will see very large software vendors turn around their position on patents," Shuttleworth said.

Microsoft is typically faced with an average of 35 to 40 patent lawsuits at any given time and has said it would welcome the reform of patent law as it hopes to pare down the $100m it spends annually defending itself against such suits.

Shuttleworth was taking part in a panel made up mostly of members the open source community plus representatives from IBM, Microsoft and Yahoo.

Rasmus Lerdof, infrastructure architect at Yahoo and creator of the PHP Web scripting language, claimed that the current patent system threatened to make independent software development unworkable. "In any other industry you can work over the weekend and not have to worry about infringing patents but in the software industry you can't even write thirty lines of code without worrying — it's ridiculous."

Shuttleworth responded to Lerdof's claims by saying that Microsoft produced prolific amounts of code and was bound to suffer in an environment where companies of every size exercised their rights under the current patent system." You think you have problems writing thirty lines of code — Microsoft has thousands of developers," said Shuttleworth.

Bill Weinberg, open source architecture specialist from the Open Source Development Labs (OSDL), was an audience member at the LinuxWorld debate and asked the panel if they believed that the idea of the 'thermonuclear option' — where Microsoft unleashed all its patents against the open source community or its proprietary opponents — was ever likely to happen.

Ubuntu's Shuttleworth claimed that if the large software makers ever decided to litigate over all the patents at their disposal then governments around the world would probably intervene, to prevent the social and economic damage that would result.

"I don't think the thermonuclear option is something that we have to worry about. Governments of the world will turn around and say that, 'This is not good for our economy or our society," Shuttleworth said.

Microsoft's representative on the panel, Nick McGrath, refused to be drawn on claims that his company was abusing current patent laws or whether the system was unworkable in the long-term. "We are a commercial software company and I make no bones about that. Most customers want to make sure they are free of any patent violations or IPR infringements. We are going to continue to protect our innovations because we are a commercial software organisation and that is what we do," McGrath said.

This week the US Patent Office rejected two Microsoft patents over the FAT file format. There has been concern that if the FAT patents are upheld, Microsoft may claim that Linux infringes on Microsoft technology and could then seek royalties.

Despite the European Parliament's recent decision to reject the Computer Implemented Inventions Directive (CIID) the European Commission (EC) has warned that patent offices across Europe will continue to grant software patents.

The Directive was criticised by various trade organisations and open source groups concerned that the directive would open the door to the widespread patenting of software, allowing large businesses to shut out competition from SMEs and open source groups.

The rejection of the directive was considered a success by many of these organisations, and a clear sign that pure software should not be patented. But the EC claims the patent directive was only about harmonising the rules on software patents, and that software patents that make a "technical contribution" will still be granted by patent offices.

ZDNet UK's Ingrid Marson contributed to this report.