All that assumes that some of MS’s patents are valid. Remebering SCO’s claims for thousands of lines of code, I am sceptical that very many of MS’s patents will be found to be valid. I have read through about 40 or so of MS patents, and many of them were for features, such as desktop pager, that were part of linux or CDE.

The other question is: under what law? We will see how the EU case against MS plays out, and I doubt very much that the final judgement will exclude MS patents, which could en masse be ruled unenforcable in EU. (I can’t wait!)

In any case, if US law allows MS to stop or stall FOSS and EU law does not, we will have a perfect laboratory to see in software firms will grow more in US or in EU, after the markets have different patent regimes. That would be very interesting…

And of course the question

All that assumes that some of MS’s patents are valid. Remebering SCO’s claims for thousands of lines of code, I am sceptical that very many of MS’s patents will be found to be valid. I have read through about 40 or so of MS patents, and many of them were for features, such as desktop pager, that were part of linux or CDE.

The other question is: under what law? We will see how the EU case against MS plays out, and I doubt very much that the final judgement will exclude MS patents, which could en masse be ruled unenforcable in EU. (I can’t wait!)

In any case, if US law allows MS to stop or stall FOSS and EU law does not, we will have a perfect laboratory to see in software firms will grow more in US or in EU, after the markets have different patent regimes. That would be very interesting…

And of course the question

Where we differ is on the solution to the problem. I believe the answer is to improve quality, lower the number of patents, and change the incentive structure to encourage developers to use the system as it was intended. I believe that the patent system can work for the software industry, and will only become more important in a future where open source and proprietary software coexist.

I’ve started a series of posts on this subject over at the ACT Blog.

I don’t know what dealings Microsoft has with the anonymous companies that have allegedly licensed their patents covering Linux. I would not be surprised if Microsoft is actually paying the companies to take a license, much as they paid off Novell.

SCO never showed IBM a thing until after years of courtroom wrangling, by which time it was clear they had nothing. They made vague threats about IP and would not tell the folks who were allegedly committing the violations (IBM and Linux developers in general) what the violations were. Microsoft is doing the same thing. If they were showing anyone anything specific without NDAs, it would leak.

Tim won’t like me saying this, but your comment that “Microsoft is showing the code to companies and they are licensing it” is PR whoredom at its finest. Not one company, save Microsoft, has come forward and stated that they believe Linux infringes Microsoft’s IP. Not one. You are basing your claim entirely on spin from the MS PR machine. Naturally, since you are part of it.

Where we differ is on the solution to the problem. I believe the answer is to improve quality, lower the number of patents, and change the incentive structure to encourage developers to use the system as it was intended. I believe that the patent system can work for the software industry, and will only become more important in a future where open source and proprietary software coexist.

I’ve started a series of posts on this subject over at the ACT Blog.

More importantly, if your version holds true then SCO showed IBM the code/etc. and IBM decided to fight it. The difference here is that Microsoft is showing the code to companies and they are choosing to license it.

Also, what about cases where the holder of a patent isn’t willing to license it? Wouldn’t that mean the programmer would have wasted a lot of time developing a product that can’t be sold?

I don’t know what dealings Microsoft has with the anonymous companies that have allegedly licensed their patents covering Linux. I would not be surprised if Microsoft is actually paying the companies to take a license, much as they paid off Novell.

SCO never showed IBM a thing until after years of courtroom wrangling, by which time it was clear they had nothing. They made vague threats about IP and would not tell the folks who were allegedly committing the violations (IBM and Linux developers in general) what the violations were. Microsoft is doing the same thing. If they were showing anyone anything specific without NDAs, it would leak.

Tim won’t like me saying this, but your comment that “Microsoft is showing the code to companies and they are licensing it” is PR whoredom at its finest. Not one company, save Microsoft, has come forward and stated that they believe Linux infringes Microsoft’s IP. Not one. You are basing your claim entirely on spin from the MS PR machine. Naturally, since you are part of it.

I do think you’re overstating the policy problem too. It would never result in an individual developer having to review every patent before writing a single line of code. It’s not like BMW reviews every patent before it starts designing a car. Oracle doesn’t review every patent before writing a new functionality for its database software. And, most importantly, in the open source world the responsibility wouldn’t really fall in the hands of the indidvidual developers but with the companies that distribute the work or use it to due their patent due diligence.

More importantly, if your version holds true then SCO showed IBM the code/etc. and IBM decided to fight it. The difference here is that Microsoft is showing the code to companies and they are choosing to license it.

Additionally, it is a complete lie to claim that Microsoft is not behaving like SCO because they agree to name the patents in question to companies under NDA. SCO did the exact same thing – they would reveal allegedly copied code only if the prospective licensee would sign an NDA first.

Also, what about cases where the holder of a patent isn’t willing to license it? Wouldn’t that mean the programmer would have wasted a lot of time developing a product that can’t be sold?

Mark, I agree with you that Microsoft could probably win in court with some of its claims. But that’s not the same thing as claiming, as Mr. Gutierrez does, that “This is not a case of some accidental, unknowing infringement.” There are tens of thousands of software patents on the books. It’s simply impossible for any programmer to review them all. So it’s not at all implausible to think that Linux could be infringing dozens of Microsoft’s patents without the programmer who added the relevant code being aware that it was covered by those patents.

The policy question is whether it makes any sense to expect a programmer to have to search through tens of thousands of patents before they’re allowed to write a line of code. That seems to be the letter of the law, and it strikes me as obviously unreasonable. As a matter of law, Microsoft probably has a strong case, but as a matter of policy, I think that’s a problem.

Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others’ intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.

I do think you’re overstating the policy problem too. It would never result in an individual developer having to review every patent before writing a single line of code. It’s not like BMW reviews every patent before it starts designing a car. Oracle doesn’t review every patent before writing a new functionality for its database software. And, most importantly, in the open source world the responsibility wouldn’t really fall in the hands of the indidvidual developers but with the companies that distribute the work or use it to due their patent due diligence.

Additionally, it is a complete lie to claim that Microsoft is not behaving like SCO because they agree to name the patents in question to companies under NDA. SCO did the exact same thing – they would reveal allegedly copied code only if the prospective licensee would sign an NDA first.

Mark, I agree with you that Microsoft could probably win in court with some of its claims. But that’s not the same thing as claiming, as Mr. Gutierrez does, that “This is not a case of some accidental, unknowing infringement.” There are tens of thousands of software patents on the books. It’s simply impossible for any programmer to review them all. So it’s not at all implausible to think that Linux could be infringing dozens of Microsoft’s patents without the programmer who added the relevant code being aware that it was covered by those patents.

The policy question is whether it makes any sense to expect a programmer to have to search through tens of thousands of patents before they’re allowed to write a line of code. That seems to be the letter of the law, and it strikes me as obviously unreasonable. As a matter of law, Microsoft probably has a strong case, but as a matter of policy, I think that’s a problem.

As for the “It’s just like SCO” claim, you know that’s false . See above AND note that MS has shared the exact details of which patents are being infringed with ALL the companies they’ve approached about the licensing deal. Those companies aren’t making deals based simply on FUD, they are making judgements based on the actual code and patents in question.

Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others’ intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.

As for the “It’s just like SCO” claim, you know that’s false . See above AND note that MS has shared the exact details of which patents are being infringed with ALL the companies they’ve approached about the licensing deal. Those companies aren’t making deals based simply on FUD, they are making judgements based on the actual code and patents in question.

One wonders how many patents Microsoft’s software is infringing on…

One wonders how many patents Microsoft’s software is infringing on…

As for the case itself, Microsoft should reveal the patents in question or buzz off.