September 20, 2007 6:15 AM PDT

Gauging Microsoft threat to Europe's Linux users

Linux users in the U.K. could face a greater threat from Microsoft than previously thought, although experts agree that British open-source users are in far less danger than U.S. users from Microsoft's claim that open-source software infringes its patents.

Microsoft has claimed that Linux and other open-source software infringes 235 of its patents. Although the company has refused to say which patents are involved, the risk must be lower in the U.K. than in the U.S. because the company has far fewer patents in the U.K., Andrew Katz, a solicitor at Moorcrofts Corporate Law, argued last week.

However, Microsoft does have more patents affecting the U.K. than the 51 U.K. patent applications Katz quoted, because Redmond also has a few hundred European patents that might have force here, depending on the decisions of U.K. courts, said David Pearce, an associate at Nottingham-based patent attorneys Eric Potter Clarkson, on the IPKat blog.

Katz points out, though, that "even if 400 (patents) apply in the U.K., this is a vastly smaller number than the amount that apply in the U.S. It demonstrates that the U.K. regime is vastly different to the U.S. regime, which is the main point that needs to be drawn out."

According to Katz, the European Patent Office has granted 431 patents to Microsoft, out of 4,341 applications. More than 7,000 patents have been granted to Microsoft in the U.S.

European patents are more attractive than U.K. patents, explained Pearce. "For obvious reasons, and not just those relating to cost, most big companies nowadays much prefer to prosecute their patent applications before the European Patent Office rather than the U.K. Intellectual Property Office."

Of Microsoft's 431 European patents, many will be irrelevant to the Linux case because they deal with hardware issues such as mice.

"In a very brief and nonscientific scan of the 51 applications made through the U.K. patent office, the proportion of patents which were hardware-related seemed significantly higher than a quick, random sample of (Microsoft's) U.S. patents," said Katz.

Europe's stance against software patents is not as firm as Katz said, according to Pearce. "Europe does indeed 'do' software patents, and has done for many years," he said.

Since 1999, patents have been issued for computer program products according to complex criteria. "(It) depends on something to do with a 'technical effect'--that is, an effect beyond that of a mere computer program," Pearce explained. "This is easier to understand when computers are used to control industrial processes, but less so when applied to general-purpose computer applications."

These criteria are just "loopholes" by which patent agents try to get around a European statutory exclusion for the patentability of computer software, Pearce said. The European Patent Convention and the United Kingdom Patents Act "make it clear that computer software 'as such' is not patentable. This obviously generates a lot of debate as to what 'as such' means."

If its Linux patents are legal in the U.K., Microsoft would have to sue for "indirect infringement"--a supplier of computer programs providing the means to put Microsoft's invention into effect--rather than "direct infringement"--a supplier providing infringing computer programs.

"The difference is one of level and burden of proof, and effectively makes it harder to enforce the relevant patents," said Pearce. "The patents would not, however, necessarily be invalid as a whole, just in part. This would not prevent Microsoft from suing anyone--just make it a bit harder for them to win."

So both Katz and Pearce agree that Microsoft is much less likely to bring any patent infringement cases against open-source users in the U.K. The U.K. Intellectual Property Office doesn't grant computer program patents anymore--ever since two recent applications (submitted by Aerotel Medical Systems) were rejected.

However, the status of patents already in existence is not clear without more case law, said Pearce.

Peter Judge of ZDNet UK reported from London.

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14 comments

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Bring it on, Redmond
This "patent" FUD has been in play for a long time to offset open
source adoption.

MS doesn't want to reveal what patents it feels are in violation
because they know that the community will circumvent them very
quickly and negate their arguments for adoption.
Posted by ppgreat (1128 comments )
Reply Link Flag
whould you like one lump of FUD or two?
This Monopoly is about to die with Linux owning hotels on Park Place and Boardwalk.

I don't think M$ will be able to collect $200 from me.
Posted by ColdMast (186 comments )
Reply Link Flag
That's the Linux Crowd for you
Forever Utterly Dumb. Ignorance is no excuse for the law, as the saying goes. It's astounding how blatantly arrogant, audacious and out dumb the free open source crowd is towards intellectual property law. But I think they are about to find out, LOL.
Posted by WJeansonne (480 comments )
Link Flag
I'll believe MS is a real threat to Linux
when they take their case to Germany.

From what I've read, Germany has a "put up or shut up" law. If you claim someone is violating your patents, you have to lay out the proof.
Posted by rcrusoe (1305 comments )
Reply Link Flag
YAWN- Come with the proof M$ or shut it up.
That's like driving down the street and a police officer pulls you over. The police keeps saying I have evidence you broke the law back there. But I wont let you go or tell you what you did. Come clean M$ or just admit you have nada.... Even out of the technology that you bought second hand from someone else.
Posted by JCPayne (820 comments )
Reply Link Flag
Why doesn't microsoft just make a decent OS?
They need better programmers, not better lawyers. I am sooooo tired of the rotten, buggy Registry. It's always getting corrupted or slowing my system down. It's totally unnecessary but they insist on this piece-of-crap file. And I hate it that I can't easily back up the whole system and reinstall it. Or just port programs back and forth without annoying reinstalls. The unreliability, obtuseness, and disaster-proneness of windows is what makes linux desirable. Why don't they just fix that and they wouldn't have to worry about the competition.

Out of fear that someone might get their lousy OS for free, they've made it so much worse that "free" is the only thing it's worth.
Posted by cybervigilante (529 comments )
Reply Link Flag
They get Market Share with Market Scare
The real idea is to scare fainthearted business users into shelling out mucho dollars for Microcrap's bloated, buggy software, out of fear of future lawsuits. The lawsuits will never happen. It's all about Market Scare as opposed to Market Share.
Posted by cybervigilante (529 comments )
Reply Link Flag
Im afraid Microsofts "Patent Threat" against Linux is very real...
...but not for any genuine, current, "IP theft" issues.

I truly believe that Microsofts, alleged, "235 patents" (which are supposedly "...infringed by Linux") are not being detailed, and acted-upon, at this time... ONLY because the new "patent reform legislation"...

<a class="jive-link-external" href="http://www.news.com/8301-10784_3-9746705-7.html?tag=tb" target="_newWindow">http://www.news.com/8301-10784_3-9746705-7.html?tag=tb</a>

...hasnt, yet, actually been fully-passed, and enacted.

First, you really need to understand that Microsoft files, literally, thousands of software-patents a year (many of which are highly-questionable). And you also need to realize that Microsoft is the largest supporter of the newest "First to File" based "patent reform" measure (currently making it way through the Federal Legislature). Frankly, if Microsoft tried to enforce its, highly-questionable, vaporous-patents, at this time, I truly believe that most would, undoubtedly, easily be shown to be "invalid" due to the "obvious nature" of many of them, not to mention the bombshell that "Prior Art" would undoubtedly wreak upon Microsofts American patent-portfolio.

However, once these, heavily-lobbied-by-Microsoft, "new" patent-laws actually go into effect... I fear that Microsoft will be in a far, far, stronger position to hold onto such shady-patents, and be further empowered to pursue a relentless litigation-threat campaign against Microsofts top "competitive-threats"... including, "Linux".

And when they [Microsoft] do finally have everything they want, Microsoft WILL use these, much-harder to invalidate, "patents" as a perpetual weapon against any potential-competition.

I honestly believe that is, exactly, why Microsoft files so many "fluff" patents (and is pushing this particular "patent reform") so hard, in the first place. This is also why, I think, that several of the more obvious Microsoft-shills are exhibiting so much confidence about "Microsofts patents" being effectively used against "Open Source". They [the shills] know about (or, at least have an inkling of) Microsofts latest FUD and market-manipulation strategy.

So, I would say the "threat to Linux" is, unfortunately, very real.
Posted by Gayle Edwards (262 comments )
Reply Link Flag
Very real threat
Maybe theoretically, but I doubt anything will actually come of it.

The EC is already keeping a close eye on Microsoft, especially when it comes to taking advantage of its dominant position. I would expect the EC to come down real hard real fast on any bullying that MS might try.
Posted by Jim Harmon (329 comments )
Link Flag
So who's going to sue Microsoft?
Effectively calling every *Nix user a thief and not backing up their claims with evidence, there must be a case for libel there somewhere.
Posted by ayteebee (32 comments )
Reply Link Flag
I like it!
A world wide class action law suite against M&#38; for defamation of
character. Sign me up, I feel my reputation has be defamed by M$
actions.

Ther must be some law firm that wants a lot of money for very little
work.

FastDodge
Posted by fastdodge (32 comments )
Link Flag
I'm not sure the patents will hold water
One possible savior for public source code is the "obvious" factor that can invalidate a patent. If two different entities achieve the same results independently, using different code, for different operating systems, could this not qualify as an "obvious" solution to the problem?

Pure speculation on my part, I'm no lawyer, but it seems obvious to me (note: if you came to the same conclusion, I posted it first and you are subject to paying me royalties in perpetuity for my patentable idea). Blaaaahhh!
Posted by Seaspray0 (9714 comments )
Reply Link Flag
 

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