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UPDATED: Microsoft Claims Open Source Patent Infringements

Microsoft says that the open source software community is infringing on its patents, and it wants that community to pony up for what it considers theft of its intellectual property, in the form of royalties.

In a story published by Fortune magazine Sunday, Microsoft General Counsel Brad Smith and Horacio Gutierrez, vice president of intellectual property and licensing, claimed that Linux and other open source software infringe on 235 Microsoft patents.

"This is not a case of some accidental, unknowing infringement," Gutierrez said in the article. "There is an overwhelming number of patents being infringed."

Gutierrez said that Linux -- Microsoft's chief rival in the server category -- is the greatest patent infringer, with 107 alleged instances. That breaks down to 42 violations in the Linux kernel, and 65 GUI violations.

The second-greatest offender, according to Microsoft, is OpenOffice, a suite of programs that competes directly with Microsoft Office, another chief cash cow for the Redmond software giant. OpenOffice allegedly violates 45 patents.

E-mail programs infringe 15 patents, the story stated, while other various open-source programs are said to violate 68 patents.

Microsoft CEO Steve Ballmer, in an interview with Fortune, stated that the issue isn't money: "We live in a world where we honor, and support the honoring of, intellectual property." Free and open source software (FOSS) patrons are going to have to "play by the same rules as the rest of the business," he insisted. "What's fair is fair."

Al Gillen, an analyst with research company IDC, called the story "a not-so-subtle way of putting pressure on other vendors in the open source space."

"Why would you release information like this in a Fortune article?" Gillen continued. "They chose to roll these data points out in an article, trying to keep the interest and noise level high, without directly appearing to fan the flames" in the often-combustible worlds of commercial and free software.

Indeed, it would appear that Microsoft had been reaching out to the open source community in a way that it never has before. On November 2006, it announced a partnership with Novell, a leading Linux developer, on a number of initiatives to improve interoperability between the Linux and Windows OSes. Just last week, Microsoft trumpeted in a press release that 12 new companies have signed on with the agreement.

In fact, the release contains a quote highlighting the growth of the Novell implementation of Linux, known as SuSE: "This impressive list of customers across a wide range of industry groups and geographies is a further proof point of the value of interoperability," Susan Heystee, vice president and general manager of global strategic alliances for Novell, said in the release. "Customers are looking for their vendors to solve their interoperability challenges. This is resulting in continued growth in the share of SuSE Linux Enterprise in the Linux market."

For Microsoft to quote the growth of any Linux distribution with approval is astonishing to veteran Microsoft watchers.

It's worth noting that the deal Microsoft signed with Novell protects Novell from any patent infringement lawsuits.

In an e-mail to this site, Gutierrez said news of Microsoft's actions should come as no surprise to the open source community.

"Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies," Gutierrez said. "The real question is not whether there exist substantial patent infringement issues, but what to do about them. Microsoft and Novell already developed a solution that meets the needs of customers, furthers interoperability, and advances the interests of the industry as a whole. Any customer that is concerned about Linux IP issues needs only to obtain their open source subscriptions from Novell."

So, are those who don't want to use Novell's version of Linux going to end up in court? Gillen said it's highly doubtful.

"If [Microsoft is] going to sue someone, what's the benefit to Microsoft?" he said. "If Microsoft was to successfully litigate away all the money in the open source community, what they collect is likely to be less than what they spend to do it. It could cost hundreds and hundreds of millions of dollars to litigate; the big companies in that space are probably worth a hundred million. It's about protecting Microsoft in the future, not about money."

About the Author

Keith Ward is the editor in chief of Virtualization Review.

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