May 18, 2007 8:02 AM PDT

Week in review: Microsoft's patent offensive

Microsoft is in another software patent fight, and this time, it's doing the saber rattling.

The software company is claiming that free and open-source software violates 235 of its patents. In an interview with Fortune, Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.

It is not entirely clear how Microsoft might proceed in enforcing these patents, but the company has been encouraging large tech companies that depend on Linux to ink patent deals, starting with its controversial pact with Novell last November. Microsoft has also cited Linux protection playing a role in recent patent swap deals with Samsung Electronics and Fuji Xerox. It has also had discussions but not reached a deal with open-source company Red Hat.

Microsoft could have several motives for rattling its patent saber: slowing down open-source rivals, raising fears of open-source legal risks among customers and winning payment for technology the company believes it deserves from a group that's generally been unwilling to pony up.

But according to Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, the company's move is designed to bring parties to the negotiating table that currently aren't there.

The software maker's more aggressive attempt to persuade open-source software companies to license its know-how follows some frosty responses to Microsoft's controversial patent deal with Novell last year. As an example of what it would like to see, Microsoft points primarily to the Novell patent deal struck in November, in which Microsoft is selling coupons that permit use of Novell's Suse Linux Enterprise Server along with the assurance that Microsoft won't assert its patents against customers.

But industry experts said the declaration's implicit demand--that companies with open-source software should figure out what Microsoft patents they're infringing and come to the negotiating table--is unrealistic at best. In general, searching for potential software patent violations isn't practical, given the number, breadth and opacity of patents in the United States.

In fact, searching for potential patent problems can actually leave a company financially exposed: if a lawsuit concludes a patent was infringed, a company or individual who knew about the potential infringement must pay triple the financial damages that would be paid by an unknowing infringer.

The developments had CNET readers railing against Microsoft, open-source software and even the current state of the U.S. patent system. But some readers echoed the frustration brought on by the accusations.

"If every software developer had to review every patent on which he/she might be infringing before writing or releasing code, it would no longer be possible to develop software in the U.S.," one reader wrote to's TalkBack forum.

Meanwhile, the U.S. Congress took a small step toward revising what many large computer industry companies charge is a broken patent system. A House of Representatives subcommittee overseeing intellectual-property law approved by voice vote the so-called Patent Reform Act. The bill's sponsors and the Silicon Valley set have hailed the measure as an effective approach to reducing excessive litigation, improving patent quality and discouraging inflated licensing agreements.

Microsoft this week also raised its stake in the advertising industry. The company on Friday announced that it would pay $6 billion to acquire digital-marketing company Aquantive to help it support more advanced advertising products and technologies in media planning, video-on-demand and Internet television.

Earlier this week, ad giant WPP Group said it would spend $649 million to buy digital marketer 24/7 Real Media, in which Microsoft was rumored to be interested. Last month, Google announced plans to acquire digital-advertising company DoubleClick for $3.1 billion, and Yahoo followed that up with its own acquisition announcement--a $680 million deal for Right Media.

New vision on patents
If Microsoft is worried about taking a hit on software sales, you wouldn't know it by the way the company heralded the sales performance of its new operating system.

Microsoft has sold almost 40 million copies of Windows Vista so far, Bill Gates told a crowd of hardware developers. That's more than the total install base of Windows' largest competitors, Gates quipped as he began his keynote at the Windows Hardware and Engineering Conference (WinHEC).

See more CNET content tagged:
patent, Novell Inc., open-source software, open source, Week in review


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No legal action
Even though M$ did point out the patent infringements, didn't M$ also admitted that they were not going to take legal action? Or did I read it wrong, or did M$ changed their minds?
Posted by DMAN3k (150 comments )
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Catch me if you can
Did Gates actually taunt the industry to find out who would fight his illegal crusade?

Linux has already survived the SCO wars and Novell was more than happy to shut SCO up.

Just because MS has "access" to the Novell Patents doesnt give them the right to threaten lawsuits.

I hearby proclaim to Gates and his Trolls: I own a Linux OS system and refuse to take cover from your lawsuits.
Posted by uqlue (5 comments )
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Beating Out the Competition
All they're doing is trying to get rid of competition, linux is free, Microsoft isn't. Microsoft is going to lose money if people go with linux, which I doubt will happen too soon because it's a bit complex for some. This Whole "Patent War" needs to stop. All it's over is money and trying to get rid of competition. It's time Consumers showed them all who's boss and just boycotted they're a$$es.
Posted by erixgirl86 (8 comments )
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How is it offensive?
I don't see how it's offensive, it's just a company protecting it's Property.
The main problem is that Patents are given out for almost any stupid idea.
It's about time the MS lawyer starts doing his job hahah :)
Why doesn't Apple bring out one of these agains MS? coz most people say they copied everything of theirs regarding the OS.
Posted by Christofer1976 (1 comment )
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Why doesn't Apple bring out one of these against MS?
Because even though most people say they copied everything of theirs regarding the OS, it's pure BS and the fact that Apple doesn't sue Microsoft is proof of that.
But I bet if they would, patents would all of the sudden make all sense and Apple would just be doing its job, unlike Microsoft who is just being stupid, according to ABMs (Anything But Microsofts).
Posted by Fil0403 (1303 comments )
Link Flag
I would like to see someone take MS to court over this. They say things to create FUD and the retaliation to that should be that someone like the FSF take them on with this.

If the Open Source community actually fight back, then MS would think twice before spreading FUD and a court case will help promote the Open Source movement and make people think twice about using MS. Imagine the press that Open Source would get?

The Open Source community need to fight back because this is truly a war and Microsoft will just continue to spread lies about Open Source if they just roll over and take it.

Open Source has many patents too, including IBM's arsenal of patents, so it's not like they are defenseless. Bring out the big guns I say.

Come on let see some retaliation.
Posted by t8 (3716 comments )
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... classification do you have for the size of "gun" that is the now Open Sourced "Journaled File System" (JFS) from IBM that was "borrowed" from OS/2 through AIX and now integrated into Linux!
Posted by Commander_Spock (3123 comments )
Link Flag
Microsoft - Bad For The US On All Fronts?
Microsoft's behavior is producing more Microsoft enemies, because they don't play fair. I can envision many, many users switching to Linux, even if it is a little less user friendly, just because they don't want to have anything to do with Microsoft.

Consider this argument: Computers are becoming so widespread and pervasive in our economy that operating systems should be considered languages - (like a speaking language). Language should be free.

Now, Another big topic for Microsoft

I cannot see US programmer/analysts liking Microsoft much, either - they seem to be one of the biggest contributors to offshoring high tech jobs (directly and indirectly) and depressing or flattening US wages for the remaining jobs.

Check out the recent Washington Post article by economist Alan S. Blinder called "Free Trade's Great, but Offshoring Rattles Me", May 6, 2007. He believes "offshoring may be the biggest political issue in economics for a generation." He says "Our unemployment insurance is stingy by first-world standards. American workers who lose their jobs often lose their health insurance and pension rights as well. And even though many displaced workers will have to change occupations - a difficult task for anyone - only a fortunate few will be offered opportunities for retraining. All this needs to change"

And Blinder in his article, Blinder doesn't even mention the H-1B visas that are being used to streamline the offshoring process, and that have caused the depression/flattening of IT wages here in the US. (these are the visas that are supposedly only to attract "the best and brightest" because we have such a shortage of high tech workers) Bill Gates has been pushing hard to get the H-1B visa quota increased to take even more American jobs away, now even faster.

The scarey part - Has there been any kind of study to try and determine exactly what impact all this offshoring will have on Americans, and the following waves of repercussions that will be felt in our communities? Add that to weak immigration policy...

When I tried to research IT layoffs to size up the situation how many, where, etc, I found the information I was looking for was not out there - I was looking for a count of layoffs of a particular job type in the IT industry that you might study for specifically. The labor information is not that specific - not anywhere near that specific. (If anyone out there knows where the data is, please correct me, and I apologize) How do I figure out what job is safe, at least for while?.

With all the "fast track" trade agreements, all the offshoring, foreign worker visas, rise in immigration (, creating such huge changes in the job supply / labor supply ratio, the availability of jobs (with living wages) and wages being paid are shifting downward. Would'nt we want to be able to track trends more closely?

I hope this issue gets more attention, gets studied, because with the offshoring of high tech service jobs, those affected are people who invest a lot of time and money to prepare for their specific career... And because careers are getting more specific in nature, transitioning to a new high tech career becomes difficult without a lot of new training, and then you are taking your chances. Many fall back career options are not financially workable. A formula for personal financial disaster.

As more and more high tech service careers are offshored, the trend will only increase. In my state of CT, a CCCS Consumer Credit Counseling Service representative says the largest group of people seeking counseling, come in because of job loss.

The immigration / foreign visa worker is on the Senate agenda right now - I hope you talk to your Senator about it.
Posted by dornbear (21 comments )
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