It would be suicide for Microsoft to pull the trigger on legal actions, hinted at this week by CEO Steve Balmer, suggesting that Linux violates 235 patents. It would drag Microsoft into a bitter series of legal actions and counter suits that might once and for all make the world turn its back on Microsoft and genuinely put in the effort to stop using technology from the biggest monopolist the world has ever known.
Linux has already been through this and been found to have an extremely clean bill of health during its fights with SCO and shown itself to be in breach of nobody’s patents.
But what this says about Microsoft, about its view of the universe, where it believes that it can win every fight it is in as long as it keeps control of the operating system, shows that it is dramatically behind the times. On handsets and set tops the world is desperate to move to an open environment like Linux and is partway there, with differentiation happening above the operating system level, and moving higher up the software stack every day. Development environments, browsers and GUIs is where the war is being fought for next generation software, not at the operating system.
For an internal committee to report to Ballmer that it thinks there are 235 instances of patent breaches in Linux is one thing, to demonstrate any to a court, which counter accusations of global corporate blackmail is another. Such a move would see the Microsoft share price collapse and potentially Ballmer removed from office.
The news leaked in earnest in an interview in Fortune Magazine, with a Microsoft internal lawyer, who detailed a list of 42 Microsoft patents in the Linux kernel, 65 in the user interface and said that the open-source office productivity suite OpenOffice.org violates 45 Microsoft patents.
We seem to remember that Microsoft won a patent dispute against Apple many years ago where Apple filed suit saying that Windows copied the Apple look and feel (which it did). Apple lost that on the grounds that Apple didn’t really own any intellectual property there, because it was all in public ownership through various standards committees and because the GUI couldn’t be patented. It would be a bit rich if a court went along with the idea now that Microsoft owned all those patents that it filed about GUIs after it stole most of its ideas from Apple. In fact Apple is largely still thought of as the R&D labs for Microsoft, with many of the original features in the OSX Tiger operating system emerging in Microsoft Vista a year later.
The outcome of open hostilities would almost certainly end up with the open source community proving it owns half of the intellectual property in Windows by showing prior use, and with half of Microsoft’s patents revoked. One source even said that it might even lead to Windows having to be pulled off the shelves for intellectual property violations.
It is being seen as a backfiring assault on Linux, using scare tactics to get companies like Novell to sign patent swaps with Microsoft (which it has) hoping that the rest of the world might follow suit and actually pay license fees (which it won’t).
There is also the fact that software may turn out not to be patentable under new interpretations of US law and the fact that Congress plans a re-working of US patent law anyway emphasizing this.
If Microsoft does plan an action, some of the biggest companies in the world, including Dell, Sony, IBM and Nokia will have to back the defense since their strategies rest heavily on the use of Linux.