Why Microsoft Won't List Claimed Patent Violations

BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."

But they have to

[CaptainCarrot]

They can't avoid it forever though, and they need to do it before any lawsuits they bring go very far. It's a requirement that a patent holder claiming infringement inform infringers exactly how they are doing that. Refusal to do so is considered a bad faith act on the part of the plaintiff, which is a serious strike against any damages they might want to claim.

Re:Devil's Advocate

[SecurityGuy]

You're making the Look-and-Feel argument, which was legally thrown out in the 80s, not a patent argument.

Thanks for playing. Please try again.

Re:Like McCarthy holding up an envelope

[cavehobbit]

Yes, there were. But when he held up the envelope it was a total bluff. He had nothing in it.

Re:Like McCarthy holding up an envelope

[Volante3192]

There's a difference between saying "There are 57 card carrying Communists in the Department of Defense!" on national television and "Julius and Ethel Rosenberg are suspected of being Soviet spies because of this evidence."

Just because there's a shark in a lake filled with trout doesn't mean you drain the lake to kill the shark. You could be one of the trout.

Except...

[Anonymous Coward]

Their problem is that they can't just keep braging that there are "238 patent violations in various OSS". The SCO case has proven how much staying vague about the actual violations is useful.

Microsoft, for credibility will have to produce a detailled list of said patent violations (and eventually a list of specific OSS application that they think are infringing).

And this, my friends, is a double edged sword.
On one hand, it will show that Microsoft HAS tangible proof that OSS are inferior because no company can be held responsible for patents infringement, and that patent lawyers will go after the users....BUT...

On another hand, such a list, and maybe a couple of days of work distributed across the whole community is everything needed to circumvent said patent and implement it either with a slightly different approach (see marching cubes vs. tetrahedron in 3D), using more generalised version (arithmetic coding vs. range coding in compression), or simply recycle some very old code in place--Micah hacks the computer system so Nathan can win. Peter controls the radiation power, and the ending is a cliffhanger into the next and final episode--code who's age is a proof of prior art.

And suddenly, all this MS PR stunt is moot.
Just imagine :
This week press titles "Microsoft says OSS dangerous because patent mine field", "New microsoft sponsored studies proves TCO to by higher for OSS because of patent fees", "Microsoft to go after individual users MAFIAA style".
Next week press titles "238 patches and upgrades on Debian and Ubuntu repositories", "OSDL sponsored study proves that OSS has the highest reaction time in terms of patch release", "RMS & Linus to give speech about strengths of OSS development ; Ballmer responds throwing chairs".

Re:Where's Novell?

[ArsonSmith]

What you're thinking about is trademark. A trademark has to be defended or it gets released to public domain. Patents are awarded and are yours until the duration is up.

Re:Where's Novell?

[KarmaMB84]

The deal required that Microsoft also had to pay royalties. Microsoft's revenues are MUCH higher than Novell's so they paid more than Novell paid them.

Re:This can (and thus probably will) go on forever

[moexu]

I don't think the (entire) problem with the SCO case is that the lawyers don't know what they're doing, it's that they don't have anything to work with. Their lawyers are trying every creative stall tactic they can think of, and then trying more, just to get out of having to finally break down and admit that they have absolutely nothing - no evidence, no lines of infringing code, no case.

With 235 possible infringing patents Microsoft has a lot more to work with. I believe that most of the patents will be found invalid and the rest will be worked around, but the process will take time and money.

I wonder if litigation is really in their best interest though. Part of the reason IBM is defending themselves so vigorously against SCO is to defend against the implication that they were behaving unethically; donating someone else's copyrighted code in bad faith to Linux. IBM makes a good deal of money supplying products and consulting services based around Linux. Wouldn't IBM's business be threatened by implications of intellectual property problems? Does Microsoft really want to go up against IBM over patents? Whatever you may think of SCO's legal team, IBM's is frighteningly competent.

Re:Equitable Estoppel or Laches?

[deblau]

They will tell people which patents are being violated -- when they send cease & desist letters or file a lawsuit. There might be a case of laches, but it won't become a defense unless MS actually fails to sue for awhile for no good reason. We'll have to wait and see on that count -- they've got six years [cornell.edu] to file, although laches may cut into that. Equitable estoppel won't apply unless MS sends C&D letters to individuals or companies, instilling the apprehension of an imminent lawsuit, and THEN fails to sue, leading the company to (reasonably) assume that MS was just bluffing. AFAIK, MS hasn't sent any letters yet, they're just posturing.

On the other hand, MS may have "used in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of ... another person's goods, services, or commercial activities." See here [cornell.edu]. Note to /. geeks: learn the words "Lanham Act [wikipedia.org]" and "unfair competition." Oh wait, MS would never be guilty of unfair competition, what am I thinking...

Re:Department of Redundancy Department

[jmorris42]

> I know this is Slashdot and everything, but at what point do the Microsoft stories become redundant?

This story justifies the coverage. It is almost certain to grow into THE dominant tech story for 2007 and will almost certainly still be dragging through the courts come the end of the decade. On the outcome rides billions of dollars, massive egos and the fate of the entire IT industry.

Re:Devil's Advocate

[javacowboy]

You're making the Look-and-Feel argument, which was legally thrown out in the 80s, not a patent argument.

Are you referring to Apple vs. Microsoft. Much of that decision going Microsoft's way was due to the fact that Apple didn't bother filing defencive patents for their GUI innovations. That was John Sculley's screw-up.

Re:Declaratory Judgement

[bb5ch39t]

I think this is possible from something called "the Latham Act" which is about unsupported claims which can negatively impact a company's business.

Re:Where's Novell?

[rainman_bc]

I know that the TCP/IP in Windows was derived from BSD.

Are you familiar with the terms of the BSD license? Last I heard BSD was a free, permissive license [wikipedia.org]?

Maybe Microsoft "owes" to you, but according to the BSD license isn't Microsoft free to implment that TCP/IP stack at will?

Re:Where's the Cease and Desist?

[theonewho]

IANAL IAHEP

the lanham act (15 USC 1125) is intended to protect companies from assertions such as those that microsoft is making with respect to FOSS -- from http://en.wikipedia.org/wiki/Lanham_Act#Subchapter _III [wikipedia.org]:

"Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff."

i believe linux and other FOSS is protected under the law to the extent that it is trademarked -- therefore, the holder of the linux trademark (the linux mark institute?) among others should have standing to file against microsoft

Re:Declaratory Judgement

[notamisfit]

It's the Lanham Act, and I think that in this case it would probably be a really stupid thing for a company like Red Hat to do. Out of 235, they really only need one upheld patent to hang themselves with.

Re:Declaratory Judgement

[tyme]

cpaluc [slashdot.org] wrote:

Isn't it be possible to get some sort of declaratory judgement from a court? Say you're RedHat (or any other Linux distributor), who happens to sell Linux and related services - in light of MS's statements, wouldn't you be entitled to know which patents are involved? MS's statements have a direct impact on your business.

And if MS refused to tell you then couldn't you get a declaration from a court that your product doesn't infringe? IIRC, this is similar to what RedHat is pursuing in its case against SCO (which is on hold while SCO v IBM drags on).

Maybe a small Linux distributor with no assets and not much to lose could pursue a case like this against MS.

First, any party bringing a lawsuit under the American legal system must have standing to sue, meaning that they must have a material interest in the outcome of the suit. Since Microsoft has not specifically threatened anybody, at the moment, it would be hard to establish standing. A really good lawyer might be able to argue that a Linux vendor is harmed by the implication that Microsoft will sue that vendors customers for patent infringement, but with any actual patent suits in process, it would be a hard sell.

Second, the American legal system refuses to issue advisory judgements, and requires that a case be 'ripe' before it can be adjudicated. Since the court would be ruling on a hypothetical ("if Microsoft were to sue for patent infringement, would we be found to be infringing?") the court would (and should) simply refuse to hear the case.

Here [lls.edu] is a good reference for standing, advisory opinions and ripeness. A little google-foo should easily turn up others.

The only bright spot in this, from a potential plaintif's point of view, is that, as a convicted monopolist, there might be a way to accuse Microsoft of restrain-of-trade, or some other violation of the Sherman Act [stolaf.edu]. Unfortunately, I think that prosecution of anti-trust cases must be brought by the federal government, and that is not very likely with the current administration. Private actions can be brought for violations of the Clayton Act [stolaf.edu] but I don't quite see how it could aply in this case, and only consumers injured by their dealings with the violator have standing to sue, which puts most direct competitors out of the running.

Disclaimer: IANALBIHTBL (IANAL But I Have Taken Business Law)

Re:Where's the Cease and Desist?

[HermMunster]

Yes the FSF does have something to do with Linux as it isn't just the kernel that was called into question. Microsoft stated various and sundry products were in violation. If any of those are owned by the FSF they can and should force Microsoft to specifically state which patents are being violated by which products.

Re:Why not just look at ALL of Microsoft's patents

[robbak]

Try 50,000, or 100,000. Or more.

it's both

[nanosquid]

Well, many of the patents probably have ample prior art. In addition, almost certainly pretty much all of them can be worked around.

How do we know that they can be worked around? Because the lifetime of patents is about 20 years. What did people use 20 years ago? UNIX workstations with colorful graphical user interfaces. They were doing desktop publishing, WYSIWYG editing, spreadsheet calculations, visual development, diagramming, E-mail, file up/downloads, chatting, VoIP, video conferencing, discussion boards, news reading, and all the other things people do today. There was C, the beginnings of C++, Objective C, several Java-like languages, several scripting languages, and Ingres. There were great IDEs (better than Eclipse or VisualStudio). The biggest changes since then have been the use of HTTP (replacing much of the functionality of NNTP and a few other protocols), the bloating of C++, theming, and window transparency in X11. Oh, and lots more memory, CPU, and bandwidth.

Whatever Microsoft may or may not have invented over the last 20 years, it's clearly not essential to modern desktop computer usage because modern desktop computer usage existed when Microsoft was still doing DOS.

IANAL, but it seems to me that FOSS projects should contact Microsoft's legal department with something like this: "Dear Microsoft, our project takes intellectual property seriously and we have a policy of not infringing patents. You have recently claimed that our project infringes upon some of your patents. We have examined our code and been unable to determine where this infringement occurs and we believe that our software does not infringe. We would appreciate if you could let us know specifically which patents and claims our code infringes according to you so that we can find a solution. Since you have already counted the number of instances, it should be easy for you to generate such a list." Send it with return receipt. I think if they don't respond, if they ever brought a claim, even though they are not strictly speaking required to respond, it would look quite bad for them.

Alternatively, just take Microsoft to court and ask for a declaratory judgement. One doesn't have to take it all the way to the end, just far enough for Microsoft to actually be forced to put their patents on the table. At that point, you look at them, implement the workarounds, and say "you may be right, but it's fixed now".

Re:Obligatory 300 quote - that's not a quote

[Anonymous Coward]

That's not a quote, that's the entire movie transcript!

Why do you keep saying this nonsense?

[jotaeleemeese]

Some people here in /. live in a very interesting alternate Universe.

Check the statistics of your own government:

http://www.census.gov/foreign-trade/Press-Release/ 2006pr/aip/related_party/ [census.gov]

please tell me which of those industries has anything to do remotely with "IP exports".

Re:Declaratory Judgement

[belmolis]

This is no longer true. A recent decision has relaxed the requirements for declaratory judgements in cases of alleged patent infringement. See http://www.wiggin.com/db30/cgi-bin/pubs/IPadvisory March2007.pdf.

Call the bluff

[Spazmania]

A DRAFT Open Letter to Microsoft General Counsel Brad Smith

Dear Mr. Smith:

My name is ______. I am the maintainer for Linux kernel 2.6. I package its various components for general distribution.

It has come to my attention that that you allege the Linux kernel infringes 42 Microsoft patents. It is my emphatic belief that the Linux 2.6 kernel infringes no intellectual properties, least of all Microsoft's patents. Nevertheless, I will rigorously investigate any bona fide infringement claim and take appropriate remedial action.

Accordingly, I ask that you specify the 42 patents you allege to be infringed. Please include concise technical descriptions of the allegedly infringing components of the Linux kernel and the claims which you believe each component violates. For the sake of everyone's peace of mind, I ask that you do so no later than July 1, 2007.

Until such a time as you have done so, I insist that you refrain from making further potentially slanderous remarks to members of the press regarding the legality of the Linux kernel and thus of my behavior as its maintainer.

Respectfully Yours,
X

Ballmer == GFUOAT

[Dystopian Rebel]

Squirts is trying to be "aggressive". He consistently talks like a fool.

Here's what Stallman really said, in context:
http://www.fsfeurope.org/projects/gplv3/tokyo-rms- transcript.en.html#patents [fsfeurope.org]

Re:Mutually Assured Destruction

[Antique Geekmeister]

It would be deadly to some careers of lawyers and middle management who specialize in manipulating patents for corporate benefit. But software patents have clearly been a massive dead-weight on technical development in the US, and worldwide. Thousands of poor quality, even fraudulent software patents are granted annually. (Take a look at the Ebay 1-click case for real prior art nuttiness.)

The limited benefit of software patents providing corporate revenue is wildly, wildly outweighed by the cost passed on to the consumer and applied against smaller compaanies or programmers of patent searches, patentn litigation, and patent applications to protect themselves from larger companies who are very efficient at building patent portfolios of every variation of a very limited number of new or purchased ideas.

Re:And the fact that there is nothing wrong with t

[Antique Geekmeister]

You, as a member of the BSD license-happy crowd, failed to pay close attention to the Microsoft/MIT Kerberos case. Microsoft took MIT's code base, modified it, broke it by extending, and made it compatible only with other Microsoft servers and clients. Under a BSD style license, this would have bene perfectly reasonable, they could keep the changes secret and proprietary, and even patent the change, and no one else could write a patch to fix it.

Fortunately, the extension wasn't patented, and the patch was easy to write, but there was a rather nasty lawsuit about it and a lot of promised "compatible with Kerberos" functionality didn't happen for a long time after the software release.