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The Patent Puzzle


Patent fights are fights about money. The secondary issue, the one that makes the headlines, is control. To really understand whats going on in the current patent posturing involving Microsoft, Novell, and a host of open-source companies and groups, it helps to keep those factors firmly in mind.

What makes this current brewing battle particularly puzzling is that it is based on software patents. The naïve can confuse software patent issues with those of copyright and trademarks. Unlike copyright and trademarks, however, where one can point at the offending code or trademarked image or language, there is no such bright shining line in software patents.

With most software patents, there is no specific language, no hard code, but only descriptions of general processes that can be implemented in multiple ways. This, as the Public Patent Foundation, or PUBPAT, points out, has led to undeserved patents being granted. Some of the reasons why this happens, according to PUBPAT, is “that the Patent Office may not be aware of significant prior art (knowledge already in the public domain), that the Patent Offices employees are not given sufficient time and resources to do an effective screening of patent applications, and that the rules regarding how patents are granted are skewed through perverse patent policy to favor granting patents.”

The result? Bradley Kuhn, chief technology officer of the Software Freedom Law Center, explained in August 2004 (when he was executive director of the Free Software Foundation) when the issue of Linux and patents was first seriously considered, that its “difficult today to write any software program—be it free software or proprietary—from scratch that does not exercise the teachings of some existing software patent in the U.S.A.”

Because of these factors, we have ended up with a legal environment where hundreds of millions of dollars can turn on obscure software patents. Indeed, in the infamous case between BlackBerry maker Research In Motion and patent-holding company NTP, RIM ended up paying $612.5 million even though, at the time of the settlement, three of NTPs five patents had been given nonfinal rejections by the U.S. Patent and Trademark Office and the two others had been given final rejections.

This kind of perverse result is not unique. The 1950s fight over FM radio between its inventor, Edwin Howard Armstrong, and RCA and the even earlier battles over DC vs. AC electrical power, and their famous champions, Thomas Edison vs. Nikola Tesla, also demonstrate how patent battles have far more to do with money and control than they do with the technical virtues of the patents themselves.

This leads us to today. On the one side, you have Microsoft. On the other, you have Novell and more open-source companies and groups than you can shake a stick at.

Microsoft reopened the Linux and open-source patent can of worms when it expanded its patents claims. On May 13, Brad Smith, Microsofts general counsel, claimed in a Fortune interview that the Linux kernel violates 42 of its patents, while the Linux graphical user interfaces break another 65. In addition, the Open Office suite of programs infringes 45 more, a number of e-mail programs violate 15 others, and an assortment of free and open-source programs allegedly transgress 68 more patents.

At one time, Novell was seen by many, thanks to its patent partnership with Microsoft, as being at least partly on Microsofts side in the patent debate. Novell has always denied this. The recent publication of the bulk of the companies patent agreement seems to support Novells position. In addition, Novell and the Electronic Frontier Foundation joined forces on May 23 seeking to reform software patent law and attack patents that impose particularly heavy burdens on software developers by identifying prior art that can be used to invalidate such patents.

If this is friendly to Microsofts Linux and open-source patent position, then Microsoft needs new friends.

Microsofts patent position has also been assaulted by a variety of companies and organizations. For example, the CEO of the Open Invention Network, Jerry Rosenthal, declared: “This is not the first time that unsubstantiated claims of patent infringement have been leveled at Linux. Moreover, just as in the past, these claims are made without disclosing any evidence. Its time to stop the accusations and show the evidence. Whats happening with these accusers is the equivalent of declaring four aces while being unwilling to show even a pair of deuces.”

OIN is an intellectual property company formed to further Linux by acquiring patents, in part, to defend the operating system against just such attacks as Microsoft seemed to be proposing. With members like IBM, NEC, Novell, Philips, Red Hat, Sony, and, just this March, Oracle, OIN represents a considerable patent litigation threat to any company, even a Microsoft, that might try to take Linux to court.

Microsofts position has also been weakened by its refusal to explain how it determined that its patents were being violated. The companys patent claims are also weakened when looked at closely.

The vague claims are essentially a repeat of claims made by Microsoft CEO Steve Ballmer in 2004. Microsofts claims were repudiated then by Dan Ravicher, an attorney and executive director of PUBPAT. Ravicher said at the time, “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.” Nothing in the years since then has convinced Ravicher to change his stance.

The lawyers of the SFLC are also claiming that the Microsoft/Novell patent deal, far from casting doubt about Linuxs patent status, may actually end up hurting Microsofts patents. They claim that, between the Novell/Microsoft patent deal and Microsoft distributing Novells SLES (SUSE Linux Enterprise Server) as part of the larger Microsoft/Novell partnership, Microsofts patents will fall underneath the anti-patent GPL 3 (General Public License Version 3).

On top of this, the Supreme Court decision in early May in KSR Intl Co. v. Teleflex Inc. is believed by many experts to make it harder for software patents to stand up in court.

Given all these complications, perhaps it is no surprise that Microsoft appears to be backing off its patent lawsuit threats. Bill Hilf, Microsofts general manager of platform strategy, and Sam Ramji, head of Microsofts open-source software lab, recently blogged, “Our strategy regarding intellectual property and open source has not changed—and it is not frivolous litigation or fear.”

Microsoft has also started a public campaign against the adoption of the GPL 3. In the past, Microsoft had shown little interest in the internal details of open-source licenses.

Perhaps, as Ubuntu leader and Canonical CEO Mark Shuttleworth recently suggested, Microsoft has realized that it would not be served by a tit-for-tat patent trench war.

From where Shuttleworth sits, the real problem for both Microsoft and Linux isnt “patent trolls”—that is, companies that never produce software, but buy up software patents and then sue those who make these ideas into successful products. No, “its not the patent holders who are the problem, its the patent system.”

It is a system that has rewarded companies with both money and control in the past. It may not this time, though, be a system that will work for Microsoft. With a new, unclear software patent legal environment, thanks to the KSR decision; opposition from other major patent portfolio holders such as the OIN members; and its own complex legal situation in regard to its Novell deals, Microsoft might best be served by letting its vague patent claims lapse into silence.

A version of this story was first published in eWEEK.

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