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Microsoft Patent Claims: Rattling Sabers or Ready to Rumble?

Microsoft’s push to get the free and open source software (FOSS) world to license its technology has ignited a firestorm of criticism and speculation. The software behemoth’s actions have perhaps also generated a strong dose of fear, uncertainty and doubt — aka FUD — in the minds of open source developers, providers and users.

Microsoft’s latest licensing push stems from its claim that FOSS infringes on 235 of its patents, and that those patents are intellectual property that should result in fair compensation to Microsoft in the form of licensing fees.

If the patents are accurate and the claims of infringement valid, Microsoft could prevail in court. If not, Microsoft could lose the patents, and with them any potential license revenue stream associated with them. If Microsoft were to publicly announce what patents specific patents it believes are being violated, the FOSS community might provide evidence to dispute those patents’ validity, which again could result in losses for Microsoft.

The big question is, will Microsoft actually take anyone to court?

Paving the Way for Legal Action

Microsoft probably doesn’t want to go to court, said David Jenkins, a registered patent attorney with Eckert Seamans.

“I think they are trying to bully the intermediate people, the ones between the people who create the software and the ones who use it. To the extent that there are intermediate people, they are trying to bully licensing fees out of them,” Jenkins told LinuxInsider.

“They can’t find the creators and they are most likely not going to sue the users, so why else are they doing it?” he said.

More Than Licensing Fees

“Why is Microsoft doing this? There’s no legal reason — there’s a financial reason. The financial reason is they make (US)$400 a second. They make $35 million a day,” Jim Zemlin, executive director of The Linux Foundation, told LinuxInsider.

“They have a net profit, solely from their Windows and Office business units, of over $12 billion a year. My point being … every second, every minute, every week, every month that they can extend that position by creating doubt in the minds of users of alternative platforms, they will do it. This [Microsoft’s patent assertion] is nothing more than hyperbole — there is no meaningful risk to anyone who wants to deploy Linux systems, and it’s as simple as that.”

Is there any reason to fear Microsoft? Does a small business that runs primarily on FOSS have anything to worry about?

“The only companies that should probably be concerned are the deep-pocket companies,” Jenkins noted. “[The companies] who might be using enough of the software to create an amount of damages worth going after — and somebody who has the money to pay those damages should they ever be imposed.”

Legal Ramifications

There are various forms of damages or relief for patent infringement, and the primary method often starts with an injunction. The courts also look at damages. Since Microsoft would have a very difficult time proving that someone’s use of Linux, for example, would equate to lost sales of Windows, the calculation of damages is a tough hurdle to jump in court. A feature in Linux that infringed on a Microsoft patent — what’s that worth?

By pushing companies into licensing situations, Microsoft may be attempting to establish a value for its patents, which would help make it possible to pursue litigation that could more easily result in specific monetary damages. In addition, by turning the tide of the conversation toward licensing, Microsoft could also be making a tactical step to create a widespread belief that its patents are valid and valuable.

Despite the step Microsoft is trying to make, could the company impose an injunction that would require a small business to stop using the software that infringes on its patents?

There is a small possibility that Microsoft could impose such an injunction, Jenkins noted, and an even smaller chance that it will actually attempt to do so.

Hot Air

“Discussing what patents might be in a competitor’s platform is a lot different than a court-tested patent,” Zemlin noted. “They are not disclosing … and making statements in the press is a lot different than very specific actions in court.”

The so-called patent infringements aren’t necessarily unique, said Zemlin, and if Microsoft takes them to court, he believes that it will start patent Armageddon within the software industry. The idea goes back to the widespread belief that the software patent system is fundamentally flawed because many of the granted patents are far from being non-obvious innovations.

“Microsoft is not going to create a meltdown in the marketplace,” Zemlin noted. “This is no different than any other kind of software, the patent situation has existed for years, and Linux is perfectly safe.”

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