Roger Parloff of Forbes Fortune reports that Microsoft is continuing to lay the groundwork to use the patent system as a weapon against the free software movement. Overall, Parloff does a good job of summarizing the dispute, but like most journalists, he lets Microsoft get away with exploiting the public’s ignorance of how the patent system works to create a misleading impression about the conflict:
But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft (Charts, Fortune 500). The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents…
It’s a breathtaking number. (By comparison, for instance, Verizon’s (Charts, Fortune 500) patent suit against Vonage (Charts), which now threatens to bankrupt the latter, was based on just seven patents, of which only three were found to be infringing.) “This is not a case of some accidental, unknowing infringement,” Gutierrez asserts. “There is an overwhelming number of patents being infringed.”
The impression Microsoft wants to give here is that free software is of high quality because it’s copied from Microsoft’s own software. Of course, that’s not true, and I don’t think Microsoft has ever claimed otherwise. But if free software was developed independently, then i’s a non-sequitur to cite free software’s patent infringement as a reason for its high quality.
The problem is that most readers aren’t aware that software patents often cover broad concepts like “wireless email” and “one-click shopping.” And so when they read that free software infringes Microsoft’s patents, they assume that means that the code has somehow been stolen from Microsoft. And Mr. Gutierrez, of course, deliberately exploits that confusion. To anyone who has actually looked at a significant number of software patents, and who’s aware that there are hundreds of thousands of them on the books, it’s not at all implausible that you could infringe 200 patents by accident. But the general public has a wildly romanticized concept of how the patent system works, and so Gutierrez can get away with those kinds of misleading statements.
His claim that the infringement can’t possibly be accidental is also belied by the fact that Microsoft refuses to disclose which patents free software infringes. If Microsoft’s patents are valid, and if free software developers have been infringing them deliberately, then it’s hard to see what the harm would be in publicly revealing which patents are infringing.
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