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Microsoft's anti-Linux patent claims: Arm-twisting for Novell-like deals

IP attorney John Rabena told that the real goal behind Microsoft's recent Linux patent threats could be to create more Novell-type partnerships with large companies using Linux and open source software.

Microsoft's recent Linux patent violation tirade, courtesy of reporting done by Fortune magazine, might have all the markers of an SCO trial repeat, but IP attorney John Rabena doesn't think it will end up that way.

Instead, Microsoft is probably jockeying for position to generate more Novell-type agreements with the bigger Linux players, said Rabena, an intellectual property attorney based in the Washington, D.C., offices of Sughrue Mion. In this interview, he offers a legal view on Microsoft's discovery of 235 cases where Linux and/or open source software infringe upon its patents.

Microsoft's patent posturing -- the rationale:

A software vendor does not, as a matter of choice, make broad patent infringement warnings without a larger strategic goal, said research company Pund-IT Inc. founder Charles King. While these events will play out in the coming months, King sees three reasons for Microsoft's actions:

  • To answer critics on its own terms -- Absent complete capitulation, Microsoft can't win the Linux and FOSS (free and open source software) communities over to its products. However, by providing information one slow step at a time, the company can leverage the IP situation to maximize its strategic value, strengthening its own position and leaving opponents off balance.

  • To support the value and validity of its Novell partnership -- Though a number of high-profile customers (including Wal-Mart and Dell) have signed on with the Novell-Microsoft team, the program may not be generating hoped-for momentum. Providing further details of developing violations could encourage fence sitters to seek safety in the Microsoft-Novell fold.

  • To challenge the GPLv3 -- Shortly after the Microsoft-Novell deal was announced, members of the Free Software Foundation said the GPLv3 would include language invalidating such partnerships. That did occur, but left open was whether or not the FSF would make the invalidation retroactive, thereby nullifying any and all certificates already sold. By further detailing its allegations, Microsoft could be trying to turn up the heat on the FSF and GPLv3 to leave things as they are. Just out of curiosity, are 235 license infringements a lot?

John Rabena: Yeah, absolutely it is a lot. For example, a typical IP infringement case would be just one patent. Five patents is a lot in an average suit.

Who is being targeted by these kinds of patent claims, and why?

Rabena: The biggest targets by far are the larger users of Linux and open source software. These are the companies that use, build and develop their business on the Linux platform. By targeting them, Microsoft is either trying to get together more Novell deals with those companies or is getting together some type of global agreement with providers.

What's the precedent? Do companies routinely say they have knowledge of patent infringements without specifying what they're talking about?

Rabena: This is a very early shot across the bow by Microsoft. What is not yet clear is if Microsoft has actually done an analysis of every one of these alleged patent violations against Linux software.

The fact that they did not name specific patents does not have any real significance yet, so I would expect this could be Microsoft looking for a broad agreement across the industry. If that agreement does not come, then I would expect them to start getting more specific about the patents in question.

I wouldn't be concerned just yet about Microsoft not identifying the specific patents, because at some point they will if they are going to pursue anything.

What is Microsoft's short-term goal with these patent infringement claims?

Rabena: It's hard to get into the mind of Microsoft. It could be they are looking for a broad agreement that covers the whole portfolio of related software patents, and in that sense they might reach an agreement without a lot of detailed back-and-forth debates regarding infringement. If Microsoft does start to get into specifics, they will select a few representative patents and begin a more definite dialogue via negotiations or via a lawsuit.

Microsoft wants more Novell-type arrangements, but the Free Software Foundation is mulling changes to the General Public License, version 3 [GPLv3] that would bar any such arrangements in the future. Do you see a head-on collision coming?

Rabena: It seems like Microsoft is trying to tell companies that [if] they get into that agreement with the GPL, [they'll be] faced with the threat of Microsoft coming after them. Maybe a way through this is for Microsoft to have a high-level agreement with originators of the [GPL].

For more on Linux and patents:
Blog: Microsoft ramps up the FUD machine

GPLv3 draft gets thumbs down from patent attorney

They could be looking for more Novell-like agreements across the board. They could be looking for several high-level agreements.

What is your advice for companies that use open source today? Is there a process they should undertake to vet their software for infringements?

Rabena: There are a couple things they can do. Negotiating power is the issue here. If a user can get indemnity from the provider of the software, then that would be ideal. In other words, they would provide the user with indemnity if they infringed on a patent.

Users need to understand that just because [you] sign an open source agreement and get that software, the provider will not come after you; but that does not mean other patent holders cannot come after you. They can certainly come after you. There will always be those risks, even with open source.

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