Over at Ars, Ryan Paul has a great article that analyzes Microsoft’s contention that free software firms are refusing to facilitate interoperability with Microsoft’s products:
Echoing similar statements already made by Mandriva CEO Francois Bancilhon and Ubuntu founder Mark Shuttleworth, Paul Cormier, Red Hat’s executive vice president of engineering, tells eWeek that his company is still very eager to pursue interoperability collaboration and “solve real customer problems without attaching any unrelated strings, such as intellectual property.”
Microsoft’s senior vice president for server and tools, Bob Muglia, denies that intellectual property issues are unrelated to interoperability. Although Muglia concedes that there are still ways to achieve interoperability without indemnification agreements, he thinks that Linux distributors “haven’t actually solved the customer’s interoperability problem unless [they] have also solved the licensing issue.”
Muglia’s argument begs one very simple question: what licensing issue? Microsoft claims that Linux and other open-source software technologies infringe on over 200 of Microsoft’s patents, but this claim has never been substantiated, and the company refuses to provide even a shred of evidence or disclose details regarding the alleged infringement. Even Novell publicly states that its agreement with Microsoft wasn’t predicated on any actual evidence of infringement. At this point, it isn’t clear that Linux distributors really need to license anything from Microsoft in order to support and distribute existing interoperability technologies developed by the open-source software community.
If Microsoft sincerely believed that Red Hat was infringing specific, valid Microsoft patents, the straightforward way to deal with the problem would be to release specific list of the patents Red Hat is infringing and seek a licensing agreement. If Red Hat was uncooperative, Microsoft could always sue to force Red Hat to pay licensing fees or stop its infringing activities.
So why doesn’t Microsoft do that? My guess is that they know perfectly well that one of two things would happen as soon as the list was released. For those patents for which workarounds are possible, the free software community would immediately develop such a workaround and distribute it to all Linux vendors. For those patents for which a workaround is not possible, the free software community would begin a multi-pronged legal effort to invalidate the patents, either by finding prior art or by challenging them under Teleflex (a patent that’s so broad that a work-around is impossible is a pretty good candidate for failing the obviousness test).
So instead, Microsoft has treated the list of infringing patents as a closely guarded secret. This is not the behavior of a company that’s sincerely interested in resolving alleged “IP issues” so they can focus on making better products. If they were, they’d have no objections to putting their cards on the table, naming the patents they believe to be infringing, and giving the free software movement a fair opportunity to respond. The fact that they haven’t done that suggests either that they know the patents can be trivially circumvented, or that they don’t believe they’ll stand up in court.
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