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Author of Linux Patent Study Says Ballmer Got It Wrong

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While Microsoft CEO Steve Ballmer cited Dan Ravicher’s study as saying that Linux has been found to violate more than 200 software patents, Ravicher says Microsoft is “up to its usual FUD.”When Microsoft CEO Steve Ballmer said he wasnt really saying that Linux violates more than 200 software patents, Microsoft followed up by saying Ballmer was only citing findings from a controversial study done this summer by OSRM (Open Source Risk Management), a risk-mitigation consultancy.

The study claimed that Linux has been found to potentially violate 283 software patents. The author of that report, however, doesnt see things the way Ballmer does at all.

“Microsoft is up to its usual FUD [fear, uncertainty and doubt],” said Dan Ravicher, author of the study Microsoft cites, who is an attorney and executive director of PUBPAT (the Public Patent Foundation).

“Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does.”

“There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system. Why? Because patents are infringed by specific structures that accomplish specific functionality,” Ravicher said.

“Patents dont care how the infringing article is distributed, be it under an open-source license, a proprietary license or not at all. Therefore, if a patent infringes on Linux, it probably also infringes on Unix, Windows, etc.,” he said.

It makes no difference whether and how software is distributed, Ravicher said. “The bottom line is theres no reason to believe that Windows, Solaris, AIX or any other functionally similar operating system has any less risk of infringing patents than Linux does.”

“Ballmer makes a very bold statement by saying Linux infringes hundreds of patents,” Ravicher said. “That is extremely different than saying Linux potentially infringes X patent, because the requirement to prove infringement is much more difficult than the requirement to simply file a case claiming infringement. As the SCO saga shows, filing a case based on an allegation is one thing; proving the merits of the allegation in court is something completely different.”

Speaking Thursday at the Microsoft-sponsored Asian Government Leaders summit in Singapore, Ballmer said, “There was a report out this summer by an open-source group that highlighted that Linux violates over 228 patents. Someday, for all countries that are entering WTO [the World Trade Organization], somebody will come and look for money to pay for the patent rights for that intellectual property. So, the licensing costs are less clear than people think today.”

In fact, the study said Linux potentially violates 283 software patents, not “over 228” as Ballmer said in his speech.

But Ravicher said Ballmer misinterpreted his studys findings. “He misconstrues the point of the OSRM study, which found that Linux potentially, not definitely, infringes 283 untested patents, while not infringing a single court-validated patent.”

“The point of the study was actually to eliminate the FUD about Linuxs alleged legal problems by attaching a quantifiable measure versus the speculation,” he said. “And the number we found, to anyone familiar with this issue, is so average as to be boring; almost any piece of software potentially infringes at least that many patents.”

The study shows that when it comes to software, open-source varieties face fewer patent threats than proprietary ones, Ravicher said. “If one believes the proof is in the pudding, open-source software has much less to worry about from patents than proprietary software.”

“Consider this—not a single open-source software program has ever been sued for patent infringement, much less been found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently.”

These include the patent battle over Eolas Technologies browser technology and the recent settlement between Eastman Kodak Co. and Sun Microsystems Inc. over Kodaks patent being infringed by Java.

Ravicher wasnt the only open-source leader to take offense at Ballmers comments.

“At OSDL, we have a lot of confidence in the robustness of Linux around IP, patents and copyright,” said Stuart Cohen, CEO of OSDL (Open Source Development Laboratory), the home organization of Linux creator Linus Torvalds.

“Some of the worlds largest vendors share our view and are willing to stand behind Linux to protect their customers, as are we,” Cohen said. “HP offers its Linux customers indemnification. So do Red Hat and Novell. Both Novell and IBM have publicly promised to use their extensive patent portfolios to protect Linux customers.”

Cohen said OSDL has set up a $10 million legal defense fund for Linux customers. “With Linux adoption growing three times faster on the server than any other operating system, customers are clearly not intimidated by FUD and are continuing to embrace Linux,” he said.

Cohen said none of the challengers to Linux has specified where the platform may be overstepping its bounds.

“Over the past 18 months, a handful of companies and individuals who are threatened by Linux’s success have tried to argue that Linux may infringe others software patents. We find it interesting that none of those companies or individuals have said which patents Linux may offend.

“Yet patents are, by their nature, public; inventions must be disclosed in exchange for the rights granted by the PTO [the U.S. Patent and Trademark Office]. Detractors of Linux on patent grounds should be asked to point to the specific patents that they claim infringe.”

A version of this story appeared in eWEEK.