Microsoft Claims Linux Violates 42 of Its Patents

Published: May 22, 2007

by Alex Woodie

Microsoft is continuing its saber-rattling against the open source software community in general and Linux in particular. In a Fortune magazine article published this week, Microsoft general counsel Brad Smith said the company has counted 235 infringements on Microsoft patents in free and open source software. Meanwhile, Linux violates 42 Microsoft patents, he said. The accusations highlight a troubling aspect of commercial software--patent law--and could signal an end to the cold war positioning and the start of hostile activities between Microsoft and open source software.

This isn't the first time that Microsoft has said Linux and other open source products violate its patents. Company representatives have broached the topic on numerous occasions, most recently in November 2005, when Microsoft chief executive Steve Ballmer told a group of Asian business leaders that Linux infringes on 228 Microsoft patents and that "someday . . . somebody will come and look for money owing to the rights for that intellectual property."

Up to this point, Microsoft hasn't used the courts to enforce its patent violation claims. Instead, it has used cross-licensing agreements and other creative legal vehicles to get what it wants. Its legal creativity was on full display last November , when Microsoft and Novell entered into a landmark partnership to pledge not to sue each other, to respect each other's intellectual property (IP), to sell each other's products, and to build more interoperability between Windows and Novell's SUSE Linux distribution.

While the deal between Microsoft and Novell crystallized a ton of criticism from the open source community, the deal remained in force, and the rocky peace was maintained. However, when Microsoft suggested that the deal served as a way for Novell to compensate Microsoft for violating its IP--a suggestion that Novell fiercely denied--some wondered if it was just a matter of time before the other shoe dropped, possibly in the form of legal action by Microsoft against Red Hat, the other major distributor of Linux besides Novell.

That is why the frank discussion that Microsoft had with Fortune magazine is so telling. The story--which can be read here--provides a very clear look into Microsoft's position on its IP and what steps it might take to protect it.

According to the article, Microsoft keeps a very detailed tally of all infringements. The total number of violations of Microsoft patents by free and open source (FOSS) software, Smith said, numbers 235--up slightly from the 228 that Ballmer cited more than two years ago. Violations by the Linux kernel number 42. The Linux GUI violates 65 Microsoft patents. The Open Office suite of programs violates 45, various e-mail programs (probably Mozilla's Thunderbird) infringe 15, while other products violate 65 more.

Horatio Gutierrez, the head of Microsoft's licensing unit, told Fortune these aren't trivial violations. "This is not a case of some accidental, unknowing infringement," Gutierrez says. "There is an overwhelming number of patents being infringed."

Because the Novell pact is unlikely to become a model for future pacts, Microsoft is left with little wiggle room. Some people think this could lead to a challenge against the notion of patents with software in general. This model is favored by backers of open source software, such as the Free Software Foundation (FSF). For-profit software companies like Microsoft are adamantly opposed to it. The courts will likely end up deciding.

The FSF, meanwhile, has made changes to the GNU General Public License (GPL) that could hold Microsoft, as a distributor of Linux (as weird as that may sound), accountable to the GPL. The changes would prevent distributors of Linux from taking legal action against other Linux distributors and users of Linux. It will likely put the kibosh on future deals modeled after the Novell deal.

One solution Microsoft sees to the patent problem is to bypass the GNU GPL and sign cross-licensing deals with the customers themselves. It has already started down this road, and has signed some marquee names like AIG Technologies, Deutsche Bank, Credit Suisse, Wal-Mart, and HSBC, to a program to purchase "coupons" for SUSE Linux from Microsoft. The flip-side of any agreement with customers is the threat that Microsoft may sue customers who don't have such protections in place. Up to this point, Microsoft hasn't sued anybody for patent violations

The specter of an all-out patent war has some corporations forming new alliances. One such alliance is the Open Invention Network (OIN), which was founded in 2005 by consumer electronics manufacturers Sony, Phillips, and NEC and IT vendors Red Hat, Novell, and IBM, and which holds 100 patents of its own.

"This is not the first time that unsubstantiated claims of patent infringement have been leveled at Linux," the OIN said in a statement issued after the Fortune article was published. "Moreover, just as in the past, these claims are made without disclosing any evidence. It's time to stop the accusations and show the evidence."

If legal action is ever taken, we may finally see the evidence of violations that Microsoft has been talking about for years. And if it's not, the saber-rattling and drum-beating will likely continue.

RELATED STORIES

Ballmer Dismisses Linux Threat, Talks Up Intellectual Property

The Microsoft-Novell Marriage of Two Minds Starts to Go Schizo

Microsoft and Novell in Landmark Partnership

Microsoft's Strong IP Protections Give Windows an Advantage

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