Open Source Blog

Microsoft playing games with patent claims
May 14, 2007

The legitimacy of its patent claims – or the patentability of software – aside, Microsoft’s recent claim that free and open source software infringes 235 of its patents smacks of cowardice.

According to the Fortune article:

[Microsoft licensing chief Horacio Gutierrez] “says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.”

These are serious claims, and anyone involved in open source would do well to take them seriously, apart from the fact that the preceding paragraph includes the following statement: “Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them.”

This is playground-level stuff. As Larry Augustin responds:

“They’re not interested in a fair fight. Like a bully, they refuse to face the Open Source world in a fair fight, instead hinting at willful infringement and making backhanded threats. Why? Like any bully they fear that when faced with a fair fight in the light of day they will be revealed for the bully they are. Like any bully they fear that which they threaten.”

If the patent claims stand up to scrutiny, Microsoft should have no qualms about detailing them. Infringers will be forced to pay the price or come up with a work around – either way Microsoft’s IP is no longer being infringed (which is the point of any patent infringement dispute, isn’t it?). If they don’t stand up to scrutiny, then there is no case to answer.

Augustin continues:

“If Microsoft believes that Free and Open Source Software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits. If not, then stop trying to bully customers into paying royalties to use Open Source. It’s time for Microsoft to put up or shut up.”

As I’ve previously noted, if Microsoft won’t sue, maybe Red Hat (or someone else) should.