More Microsoft and Patents
It was widely reported (this one's from Reuters) that Steve Ballmer of Microsoft last week spoke of the patent risks of using open source, specifically Linux. "Someday, for all countries that are entering the WTO (World Trade Organization), somebody will come and look for money owing to the rights for that intellectual property." Mr. Ballmer apparently cited the patent analysis published by OSRM that a few hundred patents were possibly infringed by the Linux kernel.Note that Mr. Ballmer didn't say that MICROSOFT would be bringing the patent litigation, despite owning a number of potentially infringed-upon patents. See my analysis of Microsoft's strategy related to Linux on October 25 on this blog.
If I were Microsoft, I'd consider trying to influence a third party technology company to bring a patent infringement suit against one or more open source end users. This could be done, for example, by an investment by a VC in which Microsoft is an investor or by a license or other deal that gives the company available cash to fund the litigation. Microsoft therefore wouldn't have to sue its customers while increasing the FUD of using open source software.
The logical target of such a suit would be a company that is not in the technology space, who probably wouldn't have patents to trade in the litigation, as well as a company that has not received an indemnity from the actual open source provider.
It might not even be necessary to have the litigation involve Linux. A good software target might be one that doesn't compete directly with a Microsoft product. If the suit was brought against another open source software product, the open source community couldn't debate the actual merits of a patent infringement case against Linux. The FUD would likely go way up, Microsoft couldn't be accused of suing a customer, Microsoft would have additional things to say against the use of open source, CIO's and others in large companies would have something new to consider, and Microsoft could still reserve bigger guns if needed.
I realize that the above analysis sounds fairly conspiratorial and may even reinforce the idea that all lawyers are evil. However, as a lawyer, it's a good thing to try to put yourself in the shoes of others and consider what they might do. Part of that analysis is examining what's possible, not just what some would consider "fair." It's important to understand that when large dollars are involved, some companies and individuals are only going to be limited by what's legal and what spins the way they want. Many companies rationalize aggressive business behavior by repeating the mantra of ethical obligations to maximize shareholder returns.
7 Comments:
excellent points and not really tin foil hat either when you consider the way microsoft has done things in the past.with them now under antitrust watch they have to do things thru third parties to keep governments from cracking down.F/OSS is a different world and the legal side is getting closer scrutiny.will be an interesting time to watch how things develop.
br3n
"The logical target of such a suit would be a company that is not in the technology space(...)"
That's not very logical, because of two points:
1) If it was that easy, Microsoft would have done it already.
2) To infring a patent or so, it would be necessary to produce the product, using it would not be enough. So it would be necessary to go after the ones doing the product, being software, most likely, a company or individuals from IT space :)
Then, there's the point that, if a patent is involved, the company can't sell/distribute that software anymore, but, being open source, very fast somebody would take that part out and in few days or few hours, the software would be available once more without any problems or delays for the customers/users.
"If I were Microsoft, I'd consider trying to influence a third party technology company to bring a patent infringement suit against one or more open source end users. This could be done, for example, by an investment by a VC in which Microsoft is an investor or by a license or other deal that gives the company available cash to fund the litigation. Microsoft therefore wouldn't have to sue its customers while increasing the FUD of using open source software."
In any civilised country this is a heinous crime. To be truly honest I don't believe this advice of yours and this whole blog isn't paid for by Microsoft.
As to the 1:30 anonymous post, I have the following to add.
As to your point #1, I really can't speak to what Microsoft knows, doesn't know, or what they are planning. I know that many of them are smart. I don't know their strategy.
As to your point #2, legally you can infringe a patent if you "make, use, or sell" the invention claimed in the patent. Simply using it is enough to infringe a patent.
Because of the nature of patents, it isn't always easy to "design" around it. Processes that are conceptual in nature (think software functionality) can be patented. Accordingly, you may not be able to have certain functionality without violating a patent. I agree that with open source, motivated programmers can remove the problem, but providing the same functionality can be difficult and under some circumstances impossible.
Now for the 4:34 anonymous comment (are you folks the same person?). I don't fault your revulsion to the tactic. However, I'm not sure what crime is violated here. Murder, conspiracy to commit murder, assault with a deadly weapon, burglary -- now THOSE are crimes. Even more esoteric crimes like violations of the Sherman Act (antitrust) don't quite fit into the scenario that I described. Let me know what crime you think this fits under.
Note that what I put on the blog isn't really "advice" that I'm giving, but I hope that it'll give some people something to think about. I don't represent Microsoft, so I can guarantee that my thoughts on this blog aren't coming from them.
I'm a UK IP lawyer so I cant speak for the US position but the use of a patented method for _private_ purposes is lawful here. One cannot distribute the patented method product and companies using it would have a problem, but the commercial organisation using it would have a substantial issue to address.
Thanks for your comment about U.K. law. (Sorry it took so long for me to respond. There was a “holiday” on this side of the pond, and I wanted to check with one of my patent lawyers to make sure of my response.) Let’s use an example to help understand whether there are differences between the U.S. and U.K.
In the U.S., suppose that an inventor develops a patentable method as a part of his job. He assigns the invention to his employer, Company X. A patent application is filed and patent issued, with Company X as the owner.
Completely independent of the inventor and Company X, Company Y develops a method that is exactly the same as that described in the claims of the patent. Company Y uses it in its own internal operations, for commercial purposes. Company Y then licenses the method to Company Z, which also uses it in its own internal commercial operations.
Under U.S. law, a patent gives the patent holder the exclusive rights to "make, use and sell" the patented technology. Company Y used the process described in the patent and therefore infringed Company X’s patent. Company Y was also an infringer when it sold the method to Company Z. Company Z was an infringer because Company Z was a user of the method.
Translated to Linux, if there is a patent that covers something in Linux, a distributor of Linux would be an infringer as a “seller” of the patented technology. A user who uses Linux only internally would be a “user” and therefore an infringer as well.
Let me know if U.K. law would produce a different result.
We have an opportunity for a real-world experiment in patent infringement issues. Research in Motion just lost a patent infringement case on appeal (it's a little more complicated than that, but apparently only a little). See http://story.news.yahoo.com/news?tmpl=story&cid=581&e=1&u=/nm/20041214/tc_nm/tech_rim_ntp_dc.
Let's see how many of you Blackberry users/confirmed patent infringers actually end up paying NTP, the patent holder, any money for the current and ongoing use of your existing Blackberry. Certainly if you do, you'd have a potential claim under your infringement indemnity, if you got one when you bought your Blackberry.
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