Monday, October 25, 2004

Is Linux Infringing Microsoft Patents?

One of the greatest perceived risks to the use of Linux is that Microsoft may bring litigation asserting that one or more of its patents may be infringed by Linux. If this is the case, why hasn’t Microsoft already brought the claims? After all, Linux is a clear threat to Microsoft’s flagship product, Windows, that gives Microsoft its greatest market power. What business reasons would stop Microsoft from bringing this kind of claim? I have some ideas, pursued in the comments.

posted by Paul Arne @ 11:42 PM  

2 Comments:

At 11:46 PM, Paul Arne said...

One of the most awkward areas of patent infringement in the open source community related to Microsoft involves interfaces to Microsoft products. If Microsoft can get patents to the way other software products must interface with Microsoft products, then it may be very difficult for an open source product not to infringe.

One reason that Microsoft might not want to bring patent litigation against the Linux community is that it doesn’t have a good target defendant on the developer side. Linux has been developed by a group of individuals who have essentially given away what they have created. There would be a huge PR hit to suing those individuals, and virtually no damages that could be collected by Microsoft. Few if any individual contributors to Linux have the wherewithal to defend and pay a judgment in a large patent infringement case. Also, as the software is freely distributed by a wide group of persons and individuals, it isn’t clear how Microsoft could get an injunction in litigation that would stop distribution and use of the patented method or process that is (allegedly) infringed upon.

Microsoft could also sue a large company that is a contributor to the open source community. The best example of that is IBM. The problem with suing IBM for patent infringement is that IBM has the world’s largest patent portfolio. It is almost inconceivable that IBM doesn’t have patent infringement claims against Microsoft already, unless both companies have agreed to a wide-ranging patent cross-licensing agreement that might preclude the litigation anyway. IBM would pursue a similar strategy against Microsoft that it has pursued in the SCO litigation — file a counterclaim against Microsoft for patent infringement.

Of course, Microsoft might just sue the end users, similar to what has been done by SCO. That then puts Microsoft in the precarious position of suing its customers, which is rarely a good strategy for company to take.

An additional problem for Microsoft is the long term business implication in being aggressive against the open source community. For example, if Microsoft uses its patents, especially of interfaces to Microsoft’s products, to bring an action against those users or developers of open source products, doesn’t that (1) encourage open source developers to better develop products that allow companies to completely divorce themselves from Microsoft (specifically the development of better usability for Linux and a more robust competitor for the Microsoft Office products) and (2) encourage large end users of Microsoft to move toward divorcing themselves from Microsoft altogether?

 
At 5:46 PM, osslawgeek said...

That's a pretty solid analysis. I think if more people in the open source community understood that there is a practical side to these issues (i.e. MS could sue for patent infringement but probably won't), there would be less hesitation. Of course, they could always bet the farm and sue anyways. But in this business you play the odds; you weight the risk against the benefit. Your ultimate point is that the risk is very low.

 

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