Tim, you make it sound like the article was written by the Microsoft PR department. I found it rather fair- Parloff took shots at both sides, and in my view leaned a bit to FOSS.
PS- I believe Parloff writes for Fortune, not Forbes.
Tim Lee
· 2 years ago
Noel, what part of "overall, Parloff does a good job of summarizing the dispute" do you not understand?
Noel
· 2 years ago
It sounded like a gratuitous gesture given the rest of the sentence, where you go on to typify Parloff as an uninformed journalist, call the public ignorant of patent issues and accuse Microsoft of a conspiracy.
Overall, Parloff does a good job of summarizing the dispute, but like most journalists, he lets Microsoft get away with exploiting the public’s ignorance of how the patent system works to create a misleading impression about the conflict...
eee_eff
· 2 years ago
This sounds like vintage Darl McBride, and we know where that ill-fated, Microsoft-funded legal mis-adventure ended up.
Just as SCOG suit is failing, suddenly we have these lies from Microsoft.
Unfortunately for Microsoft there are only a handful of countries in which they can play their strong arm game of bullying the FOSS movement which is their aim.
What will happen is that MS will not be successful in the EU, and you can forget BRIC (Brazil, Russia , India, China)
What will then happen is what I have long predicted--a world with a bifurcated software patent regime, one area in which FOSS can prosper and another (USA, perhaps Japan) where it can't.
Now, when this exists rather quickly we will see that one economic space will be superior for most businesses, such as pharma, professional services, multimedia content creation, manufacturing and that will be the one which allows FOSS.
The one that restricts FOSS will be better for only one type of industry: monopoloy software production.
After a while it will be apparent to everyone in the handicapped economic space that they have made a grave error in allowing FOSS to be restriced by legal entanglements, and then software patents will die.
It will, however, have done tremendous damage to the competiviness of the USA's economy.
eee_eff
· 2 years ago
Reading this article, it is quite clear it has made several informational exclusions that are rather odd.
for example there is no mention at all of the SCO lawsuit against IBM, Red Hat and Chrysler. The present MS statements are almost exact duplicates of Darl Mcrbride's positions early in the SCo-BM lawsuit, and any nuetral reporter would have included this information, namely that MS was not the first software company to try this.
Because such a glaring, pro-MS omission was made, it seems clear the reporter is quite biased intto the pro-MS camp.
Doug Lay
· 2 years ago
I've been mistrustful of Parloff since the Sklyarov incident back in 2001, where he wrote a charming pice headlined "Why Dmitry Sklyarov Belongs in Jail." He hasn't posted anything quite so obnoxious since, but he did author a big Fortune cover story about SCO back in 2004 that was somewhat similar to the current Microsoft article - a treatment that read as somewhat balanced but still managed to do the IP troll's dirty work by ensuring their arguments would get a hearing among the execs who read Fortune. I have no doubt that PR folks within Microsoft chose Parloff as the right reporter to tell their story. The only good thing is that Dan Lyons at Forbes must be green with envy.
As for the case itself, Microsoft should reveal the patents in question or buzz off.
Gary McGath
· 2 years ago
I'm saving "Is Microsoft the new SCO?" for the title of a blog post.
Jeremy
· 2 years ago
Is there ANY software out there that doesn't violate SOMEBODY's patent? I don't think so - because they're so broad. Maybe this will force a showdown on patents that will give everybody a much needed break from IP ridiculousness.
One wonders how many patents Microsoft's software is infringing on...
Mark Blafkin
· 2 years ago
I'm willing to grant you that many software patents are BS and probably won't hold up in the post KSR-decision world (thankfully), BUT even if 50% the patents in questions are solid... that's a lot of patents. Moreover, it's not like MS is the only one saying that these patents exist and read on aspects of Linux. PubPat did a study a few years ago that listed about 283 patents that were potentially infringed by Linux. So, let's not pretend like we don't think MS has a case here. You can argue around the edges about the number, but you have to admit that there are likely more than one defensible patent that reads on Linux.
As for the "It's just like SCO" claim, you know that's false . See above AND note that MS has shared the exact details of which patents are being infringed with ALL the companies they've approached about the licensing deal. Those companies aren't making deals based simply on FUD, they are making judgements based on the actual code and patents in question.
Gary McGath
· 2 years ago
In other words, if someone makes enough accusations, some of the must be valid?
Mark Blafkin
· 2 years ago
Actually, no Gary. This is not about accusations on the part of PubPat. PubPat is a nonprofit third party, that if anything, is a defender of Linux and gets a lot of its funding from FLOSS sources. So, I would not put them in the realm of accusers.
Noel
· 2 years ago
Jeremy, you raise the issue that inventions have a high probability of “violating” a patent. Tell me how this is significant.
Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others' intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.
Tim Lee
· 2 years ago
So, let's not pretend like we don't think MS has a case here. You can argue around the edges about the number, but you have to admit that there are likely more than one defensible patent that reads on Linux.
Mark, I agree with you that Microsoft could probably win in court with some of its claims. But that's not the same thing as claiming, as Mr. Gutierrez does, that "This is not a case of some accidental, unknowing infringement." There are tens of thousands of software patents on the books. It's simply impossible for any programmer to review them all. So it's not at all implausible to think that Linux could be infringing dozens of Microsoft's patents without the programmer who added the relevant code being aware that it was covered by those patents.
The policy question is whether it makes any sense to expect a programmer to have to search through tens of thousands of patents before they're allowed to write a line of code. That seems to be the letter of the law, and it strikes me as obviously unreasonable. As a matter of law, Microsoft probably has a strong case, but as a matter of policy, I think that's a problem.
Doug Lay
· 2 years ago
Without seeing the patents, I see no reason to concede that "as a matter of law, Microsoft probably has a strong case." Remember, no one knows what the post-KSR world will look like in terms of patents being thrown out for obviousness. It could well be that 90% or more of software patents are headed for the junkyard under post-KSR obviousness criteria.
Additionally, it is a complete lie to claim that Microsoft is not behaving like SCO because they agree to name the patents in question to companies under NDA. SCO did the exact same thing - they would reveal allegedly copied code only if the prospective licensee would sign an NDA first.
Tim Lee
· 2 years ago
Doug: that's an excellent point. If the Federal Circuit takes Teleflex to heart, maybe it will hand down rulings that invalidate the vast majority of software patents. I'm not going to hold my breath, though.
Mark Blafkin
· 2 years ago
Agreed Tim. Horacio's comments are definitely an overstatement. Many individual developers may not know what patents they are or are not infringing with the code they write. I am guessing the point he was trying to make, however, was a more confined one. Basically, that many of the commercial developers that are distributing Linux and other FLOSS code probably are aware of the patents (or could be aware if they wanted to be). It's untenable to suggest in the midst of filing thousands of software/hardware patents every year that IBM doesn't have the resources to look into what it may or may not be infringing.
I do think you're overstating the policy problem too. It would never result in an individual developer having to review every patent before writing a single line of code. It's not like BMW reviews every patent before it starts designing a car. Oracle doesn't review every patent before writing a new functionality for its database software. And, most importantly, in the open source world the responsibility wouldn't really fall in the hands of the indidvidual developers but with the companies that distribute the work or use it to due their patent due diligence.
Tim Lee
· 2 years ago
Mark, if paying for patent licenses is an afterthought that's taken care of by companies' legal departments long after the programmer has finished writing his code, isn't that pretty strong evidence that the patent system isn't performing any useful function? The ostensible rationale for patents is to help companies that develop a useful invention to protect that invention from unfair duplication, and to give them an incentive to disclose their invention so it can be used by others. But if programmers never even look at patents related to their field the disclosure rationale obviously doens't apply. And if programmers are constantly re-inventing concepts that are covered by other companies' patents, isn't that pretty strong evidence that the patents being granted are far too broad or obvious?
Also, what about cases where the holder of a patent isn't willing to license it? Wouldn't that mean the programmer would have wasted a lot of time developing a product that can't be sold?
Mark Blafkin
· 2 years ago
Doug, as far as I know MS has not demanded NDAs. Do you know differently? We're talking about patents which are public domain anyway, not trade secrets and copyrighted code, which are often held secret to begin with.
More importantly, if your version holds true then SCO showed IBM the code/etc. and IBM decided to fight it. The difference here is that Microsoft is showing the code to companies and they are choosing to license it.
Doug Lay
· 2 years ago
Mark:
I don't know what dealings Microsoft has with the anonymous companies that have allegedly licensed their patents covering Linux. I would not be surprised if Microsoft is actually paying the companies to take a license, much as they paid off Novell.
SCO never showed IBM a thing until after years of courtroom wrangling, by which time it was clear they had nothing. They made vague threats about IP and would not tell the folks who were allegedly committing the violations (IBM and Linux developers in general) what the violations were. Microsoft is doing the same thing. If they were showing anyone anything specific without NDAs, it would leak.
Tim won't like me saying this, but your comment that "Microsoft is showing the code to companies and they are licensing it" is PR whoredom at its finest. Not one company, save Microsoft, has come forward and stated that they believe Linux infringes Microsoft's IP. Not one. You are basing your claim entirely on spin from the MS PR machine. Naturally, since you are part of it.
Mark Blafkin
· 2 years ago
Tim, you make an important point, but in an overbroad sort of way. I completely agree that the patent system has some problems particularly in the way that it has handled software and related patents. Restrictions on prior art, limited knowedge among examiners, and a dangerous willfullness standard have created a system that accepts way too many poor quality patents and creates counterproductive incentives. I don't think the system is working correctly today either.
Where we differ is on the solution to the problem. I believe the answer is to improve quality, lower the number of patents, and change the incentive structure to encourage developers to use the system as it was intended. I believe that the patent system can work for the software industry, and will only become more important in a future where open source and proprietary software coexist.
I've started a series of posts on this subject over at the ACT Blog.
eee_eff
· 2 years ago
Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others' intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.
All that assumes that some of MS's patents are valid. Remebering SCO's claims for thousands of lines of code, I am sceptical that very many of MS's patents will be found to be valid. I have read through about 40 or so of MS patents, and many of them were for features, such as desktop pager, that were part of linux or CDE.
The other question is: under what law? We will see how the EU case against MS plays out, and I doubt very much that the final judgement will exclude MS patents, which could en masse be ruled unenforcable in EU. (I can't wait!)
In any case, if US law allows MS to stop or stall FOSS and EU law does not, we will have a perfect laboratory to see in software firms will grow more in US or in EU, after the markets have different patent regimes. That would be very interesting...
All Comments
PS- I believe Parloff writes for Fortune, not Forbes.
Just as SCOG suit is failing, suddenly we have these lies from Microsoft.
Unfortunately for Microsoft there are only a handful of countries in which they can play their strong arm game of bullying the FOSS movement which is their aim.
What will happen is that MS will not be successful in the EU, and you can forget BRIC (Brazil, Russia , India, China)
What will then happen is what I have long predicted--a world with a bifurcated software patent regime, one area in which FOSS can prosper and another (USA, perhaps Japan) where it can't.
Now, when this exists rather quickly we will see that one economic space will be superior for most businesses, such as pharma, professional services, multimedia content creation, manufacturing and that will be the one which allows FOSS.
The one that restricts FOSS will be better for only one type of industry: monopoloy software production.
After a while it will be apparent to everyone in the handicapped economic space that they have made a grave error in allowing FOSS to be restriced by legal entanglements, and then software patents will die.
It will, however, have done tremendous damage to the competiviness of the USA's economy.
for example there is no mention at all of the SCO lawsuit against IBM, Red Hat and Chrysler. The present MS statements are almost exact duplicates of Darl Mcrbride's positions early in the SCo-BM lawsuit, and any nuetral reporter would have included this information, namely that MS was not the first software company to try this.
Because such a glaring, pro-MS omission was made, it seems clear the reporter is quite biased intto the pro-MS camp.
As for the case itself, Microsoft should reveal the patents in question or buzz off.
One wonders how many patents Microsoft's software is infringing on...
I'm willing to grant you that many software patents are BS and probably won't hold up in the post KSR-decision world (thankfully), BUT even if 50% the patents in questions are solid... that's a lot of patents. Moreover, it's not like MS is the only one saying that these patents exist and read on aspects of Linux. PubPat did a study a few years ago that listed about 283 patents that were potentially infringed by Linux. So, let's not pretend like we don't think MS has a case here. You can argue around the edges about the number, but you have to admit that there are likely more than one defensible patent that reads on Linux.
As for the "It's just like SCO" claim, you know that's false . See above AND note that MS has shared the exact details of which patents are being infringed with ALL the companies they've approached about the licensing deal. Those companies aren't making deals based simply on FUD, they are making judgements based on the actual code and patents in question.
Actually, no Gary. This is not about accusations on the part of PubPat. PubPat is a nonprofit third party, that if anything, is a defender of Linux and gets a lot of its funding from FLOSS sources. So, I would not put them in the realm of accusers.
Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others' intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.
Mark, I agree with you that Microsoft could probably win in court with some of its claims. But that's not the same thing as claiming, as Mr. Gutierrez does, that "This is not a case of some accidental, unknowing infringement." There are tens of thousands of software patents on the books. It's simply impossible for any programmer to review them all. So it's not at all implausible to think that Linux could be infringing dozens of Microsoft's patents without the programmer who added the relevant code being aware that it was covered by those patents.
The policy question is whether it makes any sense to expect a programmer to have to search through tens of thousands of patents before they're allowed to write a line of code. That seems to be the letter of the law, and it strikes me as obviously unreasonable. As a matter of law, Microsoft probably has a strong case, but as a matter of policy, I think that's a problem.
Additionally, it is a complete lie to claim that Microsoft is not behaving like SCO because they agree to name the patents in question to companies under NDA. SCO did the exact same thing - they would reveal allegedly copied code only if the prospective licensee would sign an NDA first.
Agreed Tim. Horacio's comments are definitely an overstatement. Many individual developers may not know what patents they are or are not infringing with the code they write. I am guessing the point he was trying to make, however, was a more confined one. Basically, that many of the commercial developers that are distributing Linux and other FLOSS code probably are aware of the patents (or could be aware if they wanted to be). It's untenable to suggest in the midst of filing thousands of software/hardware patents every year that IBM doesn't have the resources to look into what it may or may not be infringing.
I do think you're overstating the policy problem too. It would never result in an individual developer having to review every patent before writing a single line of code. It's not like BMW reviews every patent before it starts designing a car. Oracle doesn't review every patent before writing a new functionality for its database software. And, most importantly, in the open source world the responsibility wouldn't really fall in the hands of the indidvidual developers but with the companies that distribute the work or use it to due their patent due diligence.
Also, what about cases where the holder of a patent isn't willing to license it? Wouldn't that mean the programmer would have wasted a lot of time developing a product that can't be sold?
Doug, as far as I know MS has not demanded NDAs. Do you know differently? We're talking about patents which are public domain anyway, not trade secrets and copyrighted code, which are often held secret to begin with.
More importantly, if your version holds true then SCO showed IBM the code/etc. and IBM decided to fight it. The difference here is that Microsoft is showing the code to companies and they are choosing to license it.
I don't know what dealings Microsoft has with the anonymous companies that have allegedly licensed their patents covering Linux. I would not be surprised if Microsoft is actually paying the companies to take a license, much as they paid off Novell.
SCO never showed IBM a thing until after years of courtroom wrangling, by which time it was clear they had nothing. They made vague threats about IP and would not tell the folks who were allegedly committing the violations (IBM and Linux developers in general) what the violations were. Microsoft is doing the same thing. If they were showing anyone anything specific without NDAs, it would leak.
Tim won't like me saying this, but your comment that "Microsoft is showing the code to companies and they are licensing it" is PR whoredom at its finest. Not one company, save Microsoft, has come forward and stated that they believe Linux infringes Microsoft's IP. Not one. You are basing your claim entirely on spin from the MS PR machine. Naturally, since you are part of it.
Tim, you make an important point, but in an overbroad sort of way. I completely agree that the patent system has some problems particularly in the way that it has handled software and related patents. Restrictions on prior art, limited knowedge among examiners, and a dangerous willfullness standard have created a system that accepts way too many poor quality patents and creates counterproductive incentives. I don't think the system is working correctly today either.
Where we differ is on the solution to the problem. I believe the answer is to improve quality, lower the number of patents, and change the incentive structure to encourage developers to use the system as it was intended. I believe that the patent system can work for the software industry, and will only become more important in a future where open source and proprietary software coexist.
I've started a series of posts on this subject over at the ACT Blog.
All that assumes that some of MS's patents are valid. Remebering SCO's claims for thousands of lines of code, I am sceptical that very many of MS's patents will be found to be valid. I have read through about 40 or so of MS patents, and many of them were for features, such as desktop pager, that were part of linux or CDE.
The other question is: under what law? We will see how the EU case against MS plays out, and I doubt very much that the final judgement will exclude MS patents, which could en masse be ruled unenforcable in EU. (I can't wait!)
In any case, if US law allows MS to stop or stall FOSS and EU law does not, we will have a perfect laboratory to see in software firms will grow more in US or in EU, after the markets have different patent regimes. That would be very interesting...
And of course the question