Foley on Microsoft

Is Microsoft Patrolling Patents Again?

It's been almost three years since Microsoft threw down the gauntlet by claiming that open source and Linux software infringed on 235 of the company's patents. Microsoft executives are once again attempting to enforce those patents -- much to the consternation of those in the open source community.

There are many unanswered questions surrounding Microsoft's open source patent claims. Which patents are involved? Why isn't Microsoft making the alleged infringements and infringers public? Will the 'Softies go so far as to sue users running software that supposedly violates these patents?

Microsoft execs have refused to specify publicly which patents they're referring to or how they've come to their conclusions.

In late February, Microsoft seemingly put the patent squeeze on Amazon.com. I say seemingly because the companies are not discussing publicly the terms of the cross-patent licensing deal they inked, so it's impossible to know for certain why Amazon gave Microsoft money as part of the arrangement. (Other companies that previously signed Linux and/or open source patent-protection deals with Microsoft include Novell, Samsung, Fuji/Xerox, TomTom, Xandros, Linspire and Melco/Buffalo. And just last month, Microsoft said it has reached an agreement with I-O Data Device, providing patent protection for the vendor's Linux-based network-attached storage and routers.)

Amazon is not a Linux vendor -- at least not in terms of developing and maintaining its own Linux distribution. The company is more of a Linux user, as it has built the Kindle operating system on top of Linux and is using Linux back-end servers to power part of the reader's operations. Microsoft called out these two facts in its press release announcing the deal, but didn't specify why it did so.

If you're among those who believe that Microsoft is playing hardball, you might assume that Amazon somehow got wind of something that led the company to fear risking potential Microsoft patent violations. That's what I believe. Tech vendors -- and Microsoft in particular -- regularly sign cross-patent-licensing deals to head off potential legal troubles. But the deal with Amazon, due to its tight non-disclosure terms and specific mentions of Linux, definitely had the semblance of something more than a run-of-the-mill patent exchange. Making it more intriguing was Amazon's payment to Microsoft.

But if you think Microsoft is simply Machiavellian, you may see its move as an attempt to spread fear, uncertainty and doubt among customers who've purchased or might purchase Linux. Several leading open source/Linux backers (among them, Jim Zemlin, head of the Linux Foundation) are in this camp. As neither Amazon nor Microsoft claimed outright that patent infringement was at the root of this new patent exchange, calling out Amazon's use of Linux was simply a PR stunt, this camp argues.

While it's interesting to speculate on what's behind the Microsoft-Amazon patent arrangement, the bigger issues revolve around when and how Microsoft's patent battle against Linux and open source software will end.

Some open source stalwarts have been calling on their community to force the issue by suing Microsoft, forcing the company to prove its claims. I think a more likely scenario involves a combination of open source developers and customers taking their case to the antitrust courts.

Do you anticipate this battle coming to a head any time soon? Or will Linux/open source vendors and their customers end up lining Microsoft's IP coffers in the coming years?



About the Author

Mary Jo Foley is editor of the ZDNet "All About Microsoft" blog and has been covering Microsoft for about two decades. She has a new book out, Microsoft 2.0 (John Wiley & Sons, May 2008), about what's next for Microsoft in the post-Gates era.

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