On Microsoft's patent claims

By now, most LWN readers will have seen this Fortune article in which a Microsoft representative makes the claim that Linux distributions violate 235 of its patents. This article has caused a fair amount of concern in the community, with some people seeing it as the beginning of some sort of Final Battle between Microsoft and free software. That might even be the case, but the true nature of the situation is far from clear. Here's a few thoughts on Microsoft's claims.

To begin, these claims are not exactly new. Consider what the BBC was reporting in November, 2004:

So this is not the first time we have heard this sort of charge from Microsoft; perhaps the only real difference is that we have somehow managed to find another seven patents to infringe upon in the last 2-1/2 years. The possibility exists that we may not hear any more about this "violation" for another two years or so - but one shouldn't necessarily count on that.

As companies go, Microsoft is relatively uninclined to pursue patent infringement suits. There was an interesting quote from the Open Source Think Tank report (covered here last week):

Microsoft has, indeed, spent more time being the victim of patent trolls than a patent aggressor itself - and it has lost vast amounts of money to patent judgments in the process. This company has little to gain by heating up the patent litigation scene even more. That said, one should see the remainder of the quote above:

Even if we believe that Microsoft will take a relatively enlightened approach as a result of its time at the defendant's table, we should not lose track of an important fact: companies whose core business goes away have a disturbing tendency to turn to their "intellectual property" portfolios as a way to keep the revenue flowing. Should Microsoft someday decide that Linux world domination really is inevitable, it could react in any of a number of unpleasant ways.

The SCO Group's attack on Linux holds a number of lessons which can be applied to any future Microsoft attack - but those lessons only go so far. There is no doubt that interesting things will happen if you anger our community, especially if you attempt to lay claim to our work. There would be a massive outcry, publicity campaigns, boycotts, and an extended effort to invalidate as many of the patents as possible. Microsoft clearly fears the capabilities of the wider community; the Fortune article notes that Microsoft is not disclosing its specific patents "lest FOSS advocates start filing challenges to them". But invalidating even a single patent is hard; invalidating 235 would certainly tax even the capabilities of our extended community.

On the other hand, Microsoft would have to name specific patents in any legal action, and, presumably, it would not base a suit on all 235 patents. There is also the unknown effect of the recent U.S. Supreme Court ruling in KSR International v. Teleflex; this ruling has raised the bar on the amount of innovation a patent must contain. Some have speculated that this ruling could lead to the end of software patents altogether. That seems like wishful thinking, but it should help those who seek to invalidate many of the software patents currently on the books.

In the SCO case, a weak and incompetent company took on the strongest target it could find, and that target chose to stand its ground. There are no guarantees that things would go the same way this time around. Microsoft is strong financially and has a large, seasoned legal operation. It may well choose to attack smaller companies which cannot afford to put up an extended fight. In theory, a patent attack against Linux should evoke a strong response from the companies working with Linux, many of which hold considerable patent portfolios of their own. In practice, we will never know who would jump into that fight until they make their move. In particular, a defense which challenges the validity of software patents in general could be seen by a number of potential allies as being against their interests.

We should, at least, be able to count on the intervention of the Open Invention Network, which was formed for just this purpose. If OIN's patents are as strong as some believe, the resulting fireworks should be worth watching - from a safe distance.

There are a few other interesting things to keep in mind. Software patents are a U.S. problem, primarily; a successful patent attack against Linux could have the effect of driving its developers and users out of the country. Linux is now sufficiently firmly entrenched that attacking its users or developers could cause extended chaos - it might even upset more people than threatening to shut down the Blackberry network. That, in turn, could inspire more thought on the true costs and benefits of the current patent regime in the U.S. Some people believe that, by selling Novell's coupons, Microsoft has become a Linux distributor and is now subject to the terms of the GPL. Any serious attempt by Microsoft to bring down Linux would bring renewed attention from the world's anti-trust authorities.

Clearly, there are quite a few unknowns here. What it all comes down to is that, sooner or later, this may well be a battle we cannot avoid fighting. Once it hits, there is no telling where things will go. About the only guarantee is that it is certain to be interesting.

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