Microsoft takes on the free world (CNN)

"Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them."

Sigh... This is annoying. Microsoft can't actually try to assault FOSS in court, that would let the FOSS community show that the alleged "intellectual property" is complete BS. That was the mistake SCO made. So they are simply going to stand up at every podium they can find and shout "Hundreds of patents!" it hope that less-educated CEOs get scared.

Maybe the best solution would be to bring to fight to them. The Software Freedom Law Center could sue Microsoft for slander. MS, in self defense, would have to reveal their patents to the world. That would give us the chance to either challenge them or work around them. Of course, the SFLC would need umteen million in cash sitting around in order to substain that kind of legal action, so that may be wishful thinking.

"...[Microsoft] asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft's patents."

Somebody surely has a high opinion of themselves. What a load of mule hock! Some day (hopefully sooner) people (including Microsoft) will realize that FLOSS owes its high quality to the very open nature in which it is developed, not because it copies Microsoft.

Seriously, though, Microsoft running around noisily claiming that the Linux kernel and related user space programs violate Microsoft patents without specifying exactly which ones reminds me of similar behavior by Joseph McCarthy in the U.S. Senate in 1950, running around claiming that the American State Department was infiltrated with Communists. Just my perception.

Now that Microsoft has a cross-licensing deal with Novell that has customers AND has made these comments, doesn't that show that their actions have caused harm to their competitors (e.g., RedHat, Canonical, etc.)? In which case, the allegations either should be substantiated or they amount to false advertising/slander of title/etc. So can't someone threaten MS that they need to substantiate the allegations and explain which 235 patents are being violated by what programs?

No, SCO was a delaying tactic to buy time for them to come up with a strategy, something other than what is about to happen I suspect. But this is all they have, all out patent war. They know the risks, it could escalate into a real horror, it could even force Congress and the courts to reform the patent system.

They know all about network effects and just how fast a seemingly invincible marketshare can change. After all they only have to look upon the corpses they have left behind them. Lotus, Wordperfect, Netscape. There were times when suggesting any of them would be overthrown would have received only laughter. They are afraid that if they simply do nothing that the point of no return will pass them. Especially when they are paranoid enough when they are crushing their enemies. The thought of a foe they can't beat with their usual tactics has em spooked.

So since they really don't have another choice, they seduced Novell to the dark side to sow discord in our camp and offer a way for short sighted mega corps to opt out of the fight, weakening our ability to recruit allies and now they will attack. Without the Novell deal every fortune 500 corporation would be looking at a major open ended liability problem with no obvious way to throw money at it to get rid of it, thus they might be scared enough to call their pet Congressman.

Interesting times ahead!

This might mean that they now expect the process in the EU to be irreversible, though. We'd best be on our guard. Do they have something planned?

235 patents in total:

42 in the kernel
65 in the GUI
45 in OOo
15 in email clients
68 in others

The first question to be asked in any court is: given that the Linux-related source code is written separately mostly by people with no relation to Microsoft, how can these patents be valid non-obvious ones if independent coders can invent them themselves? And the follow-up question: just what proportion of your patent portfolio is as weak as these patents?

But we all know that these patents will never see the inside of a court room - MS is just interested in FUD, not actual enforcement.

says "(3)(A) In making a determination with respect to the remedy in an 
action brought for infringement under section 271(g), the court shall 
consider-- (i) the good faith demonstrated by the defendant with respect to 
    a request for disclosure, ...
(B) For purposes of subparagraph (A), the following are evidence of 
good faith:
        (i) a request for disclosure made by the defendant;
        (ii) a response within a reasonable time by the person receiving 
    the request for disclosure; and
        (iii) the submission of the response by the defendant to the 
    manufacturer, or if the manufacturer is not known, to the supplier, 
    of the product to be purchased by the defendant, together with a 
    request for a written statement that the process claimed in any 
    patent disclosed in the response is not used to produce such 
    product.

The failure to perform any acts described in the preceding sentence is 
evidence of absence of good faith unless there are mitigating 
circumstances. Mitigating circumstances include the case in which, due 
to the nature of the product, the number of sources for the product, or 
like commercial circumstances, a request for disclosure is not necessary 
or practicable to avoid infringement.
    (4)(A) For purposes of this subsection, a ``request for disclosure'' 
means a written request made to a person then engaged in the manufacture 
of a product to identify all process patents owned by or licensed to 
that person, as of the time of the request, that the person then 
reasonably believes could be asserted to be infringed under section 
271(g) if that product were imported into, or sold, offered for sale, or 
used in, the United States by an unauthorized person. A request for 
disclosure is further limited to a request--
        (i) which is made by a person regularly engaged in the United 
    States in the sale of the same type of products as those 
    manufactured by the person to whom the request is directed, or which 
    includes facts showing that the person making the request plans to 
    engage in the sale of such products in the United States;
        (ii) which is made by such person before the person's first 
    importation, use, offer for sale, or sale of units of the product 
    produced by an infringing process and before the person had notice 
    of infringement with respect to the product; and
        (iii) which includes a representation by the person making the 
    request that such person will promptly submit the patents identified 
    pursuant to the request to the manufacturer, or if the manufacturer 
    is not known, to the supplier, of the product to be purchased by the 
    person making the request, and will request from that manufacturer 
    or supplier a written statement that none of the processes claimed 
    in those patents is used in the manufacture of the product.

    (B) In the case of a request for disclosure received by a person to 
whom a patent is licensed, that person shall either identify the patent 
or promptly notify the licensor of the request for disclosure. "

[1] SCO's financial results are in

Seems 'the SCO Group' is on its way down. "Well done Darl McBride!" Here's an old email i sent to someone in August 2003, when asked what i knew of this new company called 'The SCO group' :

   
Hi,       
      
Last year, in September 2002 I met Darl McBride in real life by sheer      
coincidence. Actually i spoke with him for an half a hour. It was a      
joined Caldera/HP symposium called GeoFORUM on 25 September 2002 at the      
Holiday Inn Hotel, Haagse Schouwweg 10, Leiden. It was the announcement      
in Holland of Caldera's new company name : "The SCO Group Inc."       
      
Although Darl McBride was not listed on the GeoFORUM announcement letter,      
he did show up to give an unannounced speech as the new CEO or their      
renamed company (formerly Caldera Inc.) The SCO Group Inc. Now that I      
think of it, why would McBride not announce himself before the conference      
started that he would give a speech?       
      
Anyway, I talked to McBride about the role of Linux, and how the Linux      
thing should be incorporated into UNIX business. I told him, that Linux      
and other OSS stuff are ready for download, like wood in the forest. It      
only takes experienced carpenters to make it to use. The problem is      
however McBride is a experienced business man only. and he fired his own      
squad of experienced SCO UNIX carpenters.       
      
McBride said the following. He was there to tell that Caldera was      
surprised to see that SCO UNIXWARE and SCO OpenServer license card and      
media sales were the largest income at Caldera's. That's why the decided      
to a company name change into "The SCO Group Inc."       
      
McBride asked the audience why people kept purchasing SCO OpenServer. The      
answer was, "Because it just works, all your software runs, and it      
doesn't come with unneeded bloated features". Then he asked why Linux      
like water was free to drink. I told him that when you drink water from a      
unknown source you might get ill. If you buy your water from a reliable      
source your fine. So labeling and branding the Linux water was a way to      
earn a decent income from Linux.       
      
So it all comes down to, as a business being liable for the products you      
sell. And if you screw up your company's product, you will have to      
suffer. McBride turned almost white :) So this dude is phony IMHO.       
      
cheers,       
      
Robert      
--      
Robert M. Stockmann - RHCE      
Network Engineer - UNIX/Linux Specialist      
crashrecovery.org stock@stokkie.net      

Like with Windows, the reliability of the Novell SuSE Linux desktop is today harmed by 3rd party software in binary form, like the latest Flash gear.

Patent Law, is *NOT* the same as Copyright Law.

The *ONLY* thing the US government grants to the patent holder is: "The exclusive right to market the invention...". In this sentence, "market" is a verb. Let's look up the meaning of "to market" in Black's Law dictionary (use the older dictionary that was available at the time the law was written.) The verb "to market" means: "to sell, or offer for sale, or license the sale of". Also, when a patent is issued, the US Government is automatically granted a perpetual non-exclusive license to the technology for FREE.

If no money changes hands for a product, then the product was *NOT* "sold".

*ALL* distributors of free software that I know of GIVE AWAY FOR FREE the software-- though some of them charge a fee for the media and/or service of burning the FREE software onto a disk.

*NO* "end user" of a patented technology can be sued for "patent infringement", because they are *NOT* selling a product incorporating the patented technology.

Microsoft's assertions of "patent infringement" DO NOT APPLY TO END USERS, PERIOD. AND THAT MEANS CORPORATIONS TOO (which are just "paper persons".)

Microsoft's assertions of patent infringement DO NOT APPLY TO DISTRIBUTORS OF FREE PRODUCTS OF ANY KIND.

The only exception to this is for the non-GPL-type licenses (BSD, MIT, etc.), where the distributor of the software chooses to charge money for the software. Then, and only then may Microsoft's assertions of "patent infringement" apply, and then only if the patents are found to be valid, and only if the software sold uses the patented technology.

As a veteran of patent infringement lawsuits, allow me to explain how this all works.

In order to keep it's patent rights, a patent holder (Microsoft in this case) *MUST* begin proceedings against the alleged "patent infringer". This is called "due diligence", and there is a time limit set forth in case law for this. The clock begins as soon as the patent holder realizes that a patented technology is (possibly) being infringed. If you inform the alleged infringer within six months, you are on solid ground, and longer than that is "questionable" (you better have a good reason!) The proceedings begin by sending a "Cease and Desist" letter to the alleged patent infringer. The letter *MUST* state the specific patent number, and *MUST* state specifically how the person or company is infringing (or is "about to" infringe by offering a product for sale). For software products, this would at least show the product that the alleged infringer is offering for sale, and *HOW* that product allegedly infringes on the patent holder's technology. If this information is not provided, case law holds that the alleged infringer has *NOT* been "noticed" (given sufficient notice) of the infringement, and the process has not yet begun. The patent holder may *NOT* wait until sufficient damages have accrued before beginning to exercise "due diligence", because the court is likely to declare that the alleged patent infringer has been given permission (by "default") due to insufficient notice in a timely manner, and this *CAN* cause the patent to end up in the public domain.

So, let's assume that sufficient notice begins. The two parties may engage in a dialog to further define the alleged infringement, and if the alleged infringer then agrees that they are infringing, they can either decide to stop infringing immediately, or to work out a licensing deal with the patent holder. (The latter is the usual course taken.)

If the alleged infringer does *NOT* agree that infringement is taking place (for various reasons, like: 1) they are not selling anything or offering anything for sale, or 2) they think the patent is not valid due to one or more reasons, or 3) or they believe that their product uses a different technology than what the patent holder is claiming that they are using, etc.) The two parties will now begin court proceedings. This usually begins by the patent holder filing a lawsuit against the alleged infringer, who then in turn usually motions the court for a "show cause" hearing (which is almost always granted.) In this "show cause" hearing, the patent holder *MUST* show proof of the exact product that the alleged infringer *SOLD* (or offers for sale if no sale has yet occurred), and the exact manner and method that the alleged infringement is occurring. If insufficient evidence is provided that shows that clearly shows that infringement is taking place, the judge will dismiss the case, and that is the end of it. If the judge believes that there is sufficient evidence that infringement occurred, then a trial date will be set, and at this time the patent holder usually motions the court for injunctive relief (to stop the alleged infringer from selling the products in question until the matter is resolved in court.) In these kinds of cases, the motion for injunctive relief is usually denied, but the judge will order the alleged infringer to keep accurate record of all sales (in case they lose the case, the infringer will have to surrender all proceeds of any sales.)

So, as you can see from the above, Microsoft would never make it past the "show cause" hearing stage, because no products are being sold, and no there is no intention to sell any products. (Indeed, the GPL forbids the sale of the GPL'd software for any amount of money.)

END-OF-LAWSUIT. GAME OVER.

So (for example) if you download a FREE ISO image of "Ubuntu Linux" from a server in South Africa, burn the ISO image onto a CD, and install the software, Microsoft has no "standing" in court, because: 1) You are an end-user of the product, and you are not selling the product or offering it for sale, and 2) South Africa (wisely) does not recognize "software patents", and so no lawsuit can be filed in that country. In this case, Microsoft is simply left out in the cold, and can do *NOTHING* (without being counter-sued for a "frivolous lawsuit", and THEY would LOSE.)

So, unless you *KNOW* what you are talking about, please quit with all of the "worry talk". It is just scaring everyone, and is only *helping* Microsoft with their "Fear, Uncertainty, and Doubt" [FUD] campaign.
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