Microsoft Cross-Licensing Tactic May Get Teeth Pulled Soon

Waiting for Bilski: the end of software patents?

I have often argued that the diversification of Linux has always been one of its big strengths: the richer the distribution ecosystem is, the richer the application set, and so forth.

Today we saw another example of why the decentralized nature of Linux is such a plus, when Microsoft revealed it believes Android infringes on its patents--a stick Microsoft was willing to use when it offered Taiwanese phone maker HTC the carrot of a yet another cross-licensing agreement.

While you roll your eyes about this, take heart in that fact that this tactic, while aggravating, demonstrates another great advantage of Linux being open and diverse: it helps keep Linux vendors from getting sued. To me, that's the best reason to explain why Microsoft keeps insinuating there's patent infringement going on within Linux, and yet to date they've failed to successfully sue any Linux company directly for said infringements.

There was, of course, the suit Microsoft launched against TomTom in early 2009, when TomTom initially declined to license technology on which the Redmond, WA company supposedly holds patents.

How this officially worked out is still something of a mystery, since the two companies settled just a month later. Many players in the Linux community (including my then-employers at the Linux Foundation) had lined up to do battle with Microsoft, though likely it was TomTom's countersuit that Microsoft infringed on some of its navigation patents that got the lawyers in Redmond to back down, rather than the prospect of an ugly community fight.

Microsoft's continued strategy to deal with Linux is to cross-license with vendors whom it claims are working with patent-infringing technology. Such cross-licensing "protects" the participants from getting sued by Microsoft, while letting Microsoft keep a thumb on future developments from the vendor--all without revealing publicly what the actual infringing software might be.

This is, really, the only approach Microsoft can effectively take, for two big reasons. First, if they sue a Linux vendor the patent infringement goes from hint status to formal accusation. This means that in very short order, whatever code that might be infringing on Microsoft will be identified and very likely removed or fenced in by either the defendant or (more likely) and independent developer. That's the real beauty of open source code. If a proprietary vendor were getting sued, the plaintiff could ask for an injunction to stop the distribution of the alleged offending code. If someone tries to sue a Linux vendor and file a similar injunction, the alleged code could be removed by other vendors and Linux would easily continue.

So, if you can't stop all of Linux from being distributed, then the only other reason to sue is to get money. Which is the second big hurdle, because Microsoft clearly (a) does not need the money (yet) and (b) more importantly, which Linux players event have money? Red Hat, Novell, IBM, and Oracle. That's it. But here's the thing: yeah, they have money, but they also have patent portfolios of their own, and the lawyers to back them up. And even if you could identify the original developers who may have inserted infringing code, suing them would be pointless and would bring Microsoft the PR equivalent of accusations of being kitten killers.

Which means they have to do this guerrilla-tactic stuff: rush in, pick off the weaker vendors in the herd, and try to tie them up in cross-licensing. Sometimes it works, sometimes it doesn't.

All of this pre-supposes that Microsoft's patents are being infringed, which has yet to be proven in a court of law. In my opinion, I think Microsoft may have some validity to its claims, but not because they are genuinely innovative and some Linux developer copied them. No, unfortunately the "validity" just comes from the fact that their patents are so ridiculously vague and because there are only so many ways any developer can skin a technological cat that it's hard to believe someone hasn't accidentally busted a patent here and there. Broad patents like these are like painting someone into a corner and inviting them to leave the room--without touching the paint.

Fortunately, the entire notion of patentable software may get challenged very soon. Interested watchers of the US Supreme Court heard that opinions were being handed down this morning, and many folks the free and open source software community were hoping one of them would be Bilski v. Kappos, argued before the Supreme Court in November 2009. (Alas, it was not to be today.)

But, when the Bilski opinion is handed down, it could potentially be a huge blow to software patents. At its core, Bilski is about the patentability of ideas. When Bernard Bilski tried to patent a method of hedge trading in 1997, it was rejected by the US Patent and Trademark Office, because there was no way such an idea would apply to a machine or pass the so-called ”machine-or-transformation” test.

If the Court upholds the PTO's (and the subsequent Court of Appeal's) decisions that this transformation test must be at the heart of every patent application, this would reinforce the pre-1990s idea that patents should not apply to abstract ideas or algorithms.

And software, as we all know, is just one big-ol' algorithm.

Of course, the Supreme Court's decision may not favor this notion, though earlier, similar cases from the Court trended towards the non-patentability of ideas.

I, for one, would be happy as a clam to see software patent portfolios get blown out of the water and let software companies compete in terms of the things that matter, rather than vague threats and insinuations.

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