Intelligence on Microsoft motives?

COMMENTARY--It can take a long time to realize that war is in the air. Is that a sword being unsheathed or merely a saber being rattled? A field exercise or the first stage of mobilization? Are those defensive forces digging in at the border, or shock troops readying a surprise onslaught?

These issues consumed military planners during the Cold War, but they all boil down to one simple question: what is in the mind of the opposition? Until the first shot is fired, there is always an element of ambiguity in even the most offensive posturing--and you can be sure that an aggressive foe will use that ambiguity to the full.

This is why field marshals and CEOs alike rely so heavily on intelligence. It was information from the field that kept us from nuclear annihilation; we know to our cost how bad or no intelligence can lead even the most sophisticated governments astray.

On the other hand, one piece of critical information can crystallize an entire sea of murk. Like a flare soaring above a night-time battlefield, HP's leaked memo from June 2002 is just such a defining item.

Short, sharp and clear, it outlines HP's fears that Microsoft is going to war on open source through patents. HP knows Microsoft: it has enjoyed a close relationship with the company for decades and has struck many deals. When HP recognizes that MS has decided on a plan, you can be sure of that perception. The details in the memo--the open source products up first for attack, the thrust of the campaign to come and the implications for HP--will not have come from HP's imagination. Words will have been had.

But this was two years ago, and the promised onslaught has yet to happen. Could this be just another bit of MS partner management, a bit of internal FUD designed to keep HP on the straight and narrow without the risks of having to actually do anything? Is Microsoft's patent arsenal there, as the company has said, purely for defensive purposes?

Let's look at what Microsoft has been doing in the intellectual property arena over the past couple of years. It has embarked on a record number of cross-licensing deals, including some with long-term combatants such as Sun, and started to open up its intellectual property portfolio to anyone who wants to sign up.

It has registered, bought or prepared thousands of patents. It has settled many long-running IP cases out of court, never to its advantage. It's said that academics can use its IP for free. Are these the signs of a company settling down to being a good corporate citizen and preparing to play by the rules, or a company preparing to use the court and patent system for a much bigger and more aggressive assault? If you don't habitually license your IP on fair terms, you have a hard time convincing the courts that you're suddenly in favor of the idea: ditto if you're in the habit of aggressively pushing claims of questionable merit.

Most significantly, though, Microsoft has hired Marshall Phelps.