Microsoft patent claim on embedded Linux?

Paul McDougall at InformationWeek may be reading too much into Microsoft's recent patent deal with Kyocera, but he does ask an interesting question. Does the agreement reveal Microsoft's patent position, at least as it relates to embedded Linux? (Or does it simply reveal that Japanese companies would rather settle with Microsoft than stand up for themselves, since they seem to be falling like flies before Microsoft's patent FUD?)

McDougall writes:

Under the deal, Microsoft gets to add patented Kyocera Mita technology to its Windows and Office products.

What does Kyocera get? The right to use patented Microsoft technology in its printers, copiers and "certain Linux-based embedded devices."

The question, of course, is why Kyocera Mita would need a patent from Microsoft to enhance products built on embedded Linux. Is it adding proprietary Microsoft technology on top of embedded Linux?

Or does it mean, as McDougall asks, that Kyocera is accepting Microsoft's patent claims?

I doubt it. I doubt Microsoft has been any more forthcoming in private about its patent claims than it has in public. I used to work for a large Japanese company (Mitsui & Co.). I also used to work for an embedded Linux vendor. Between the two roles I discovered that Japanese electronics companies use a lot of Linux and they're also very conservative.

Mix the two together, with a finger-pointing, brash American FUD-meister like Microsoft, and you get a patent deal. I don't think there's much more to it than that.

Regardless, Linux had a strong toehold in embedded Linux before Microsoft even thought of being relevant there. If nothing else, I'm guessing any claims around embedded Linux would be swatted down on prior art (whether that's from Linux or VxWorks, pSOS, etc.).

[Noah Clements]

Kyocera is not your shield

There's also the issue that patent claims against foreign consumer product companies like Kyocera would most likely be heard before the International Trade Commission rather than in federal district court. There are a couple of ramifications of that - (1) the ITC is supposed to resolve doubts in favor of the domestic claimant, and (2) no jury trial - injunctions are "easier" to get. Plus, unlike Canonical and Red Hat, Kyocera gets no PR boost from thumbing its nose at Microsoft - Kyocera licenses plenty of patents, and probably sees no reason to differentiate Microsoft's claims.

Much of the open-source commentary implies that Microsoft doesn't have a good-faith belief that their patents are implicated when they seek a licensing agreement. However, they have to have a good faith belief that they do, even if uncertain, or they would be opening themselves to liability in these contracts - it wouldn't make any sense. That doesn't mean that someone can't put them to their proof, but then you are talking about the gamble of litigation.

There are good reasons for Kyocera to believe Microsoft, and no good reasons for them to risk liability to protect the FSF agenda.