By Roger Parloff
May 14, 2007

In the current issue of Fortune (cover dated May 28), Microsoft (MSFT) executives assert that free and open-source software, including the Linux operating system, infringes 235 of its patents. The feature, which is available here, is entitled Microsoft Takes On the Free World, and also describes how, for the past four years, Microsoft has been methodically pursuing the goal of receiving royalties from users and/or distributors of free software. Though Microsoft breaks down the 235 patents into several general categories, it still does not identify any specific patent or how it infringes.

I wrote the feature story, so I suggest writing any comments or questions about it as comments to this blog entry, since I might possibly be able to add some answers or additional insights.

For the full responses of free software advocates to Microsoft’s claims, I refer readers to the feature. But in very brief summary, Eben Moglen, executive director of the Software Freedom Law Center (and longtime lawyer to the Free Software Foundation) says: “Numbers aren’t where the action is. The action is in very tight qualitative analysis of individual situations.” He is referring to the fact that patents can be invalidated in court on numerous grounds; that others can easily be “invented around”; and that still others might be valid, yet not infringed under the particular circumstances.

Still, 235 is a lot of alleged infringements. “This is not a case of some accidental, unknowing infringement,” says Microsoft’s licensing chief, Horacio Gutierrez. “There is an overwhelming number of patents being infringed.” By comparison, for example, Verizon’s (VZ) patent suit against Vonage (VG) was based on seven patents, of which just three were found to infringe. In the story, Gutierrez, breaks down that figure into the following categories:

1. The Linux kernel allegedly infringes 42 Microsoft patents. (The kernel is the deepest layer of the operating system, which interacts most directly with the hardware.)

2. The Linux user interfaces allegedly infringe 65 patents. (The user interfaces are the way design elements, like menus and toolbars, are set up to promote easy and intuitive use.)

3. The Open Office programs allegedly infringe 45 patents. (This a suite of free software programs analogous to Microsoft’s Office, including, for instance, word processing, spreadsheet, and presentation software, which perform functions like Microsoft’s Word, Excel and PowerPoint products.)

4. Free email programs allegedly infringe 15 patents.

5. Other assorted free software programs that are frequently included in Linux distributions allegedly violate another 68 patents.

The question I anticipate that most readers will want to ask (and that isn’t really answered in the feature story) is: Why doesn’t Microsoft identify the specific patents and explain what specific aspects of free software infringe them. I did ask Gutierrez that question, and here was his answer: “We do. But in private conversations in the process of licensing discussions with companies that are looking in good faith for ways of resolving the situation.” In those contexts, he says, “we walk through a number of exemplary patents and go as deep as they want us to go. Our experience has been every time we’ve done that, it doesn’t take companies a long time to figure out that there is an issue here.”

Why won’t he do the same thing in public? “There are a number of legal reasons why companies don’t do that. No company does that. IBM (IBM) doesn’t do that. HP (HPQ) doesn’t. Fujitsu (FJTSY.PK) doesn’t. For a number of practical reasons. Once you’ve made that statement from a public perspective, anybody in the world can go to court and ask for a declaratory judgment. That would spur potentially hundreds or thousands of lawsuits around the world, or reexaminations of patents around the world. Even if they’re perfectly good patents, it would create an administrative nightmare.”

So that’s his answer to that one. Please read the feature and then let me know what you think.

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