Microsoft has long insinuated that the open-source software field is littered with applications infringing Microsoft patents. In comments published in Fortune magazine this week, Microsoft General Counsel Brad Smith and licensing head Horacio Gutierrez threw gasoline on the fire by offering for the first time a precise count of the patents they think have been infringed: 235 patents, 42 by the Linux operating system alone.
Notably, Smith and Gutierrez declined to name any of the specific patents they believe have been violated, claiming that doing so would invite open-source software advocates to begin pelting the patents with legal challenges.
Smith and Gutierrez also declined to offer any specifics on what Microsoft plans to do about the alleged violations. Suing companies that violate the patents isn't in the cards, Smith told Fortune: "It was going to get in the way of everything we were trying to accomplish in terms of [improving] our connections with other companies, the promotion of interoperability, the desires of customers."
The company's preferred path is cross-licensing deals, in which it defuses the legal issues around its patents without defanging them entirely by striking "patent swap" agreements with its rivals. Some, like the landmark peace treaty it reached with Sun Microsystems three years ago, are uncontroversial deals that partners and customers applauded.
But when Microsoft passed the peace pipe to Novell in November, it sparked an explosion in the open-source community. Microsoft agreed not to sue any Novell customers running Linux for Microsoft patents they might be infringing in the process. Implicit in the deal was the suggestion that other Linux distributors -- like Red Hat -- lacked that assurance. Their customers remained vulnerable.
The maneuver so incensed the Free Software Foundation, author of the GNU General Public License (GPL) that covers Linux, that it delayed the ongoing GPL revision process to spend time crafting new language specifically disallowing the kind of selective patent covenant Microsoft granted Novell. The latest draft, released in March and scheduled to take effect this summer, blocks companies from conveying GPL-covered works if they've made arrangements with a third party (such as Microsoft) to shield only their customers from patent-infringement claims.
Microsoft has reportedly tried to convince Red Hat to enter into a patent covenant similar to the one it struck with Novell, but Red Hat isn't interested -- it's taking the "freedom or death!" path. In response to the Microsoft/Novell deal, it posted a "We believe ..." manifesto to its Web site, pledging, "We will not compromise." For customers that license Red Hat's enterprise software, paying support fees, it offers an assurance program pledging that it will remedy any rights issues related to its software (by modifying the software to remove infringement or obtaining the rights necessary for customers to use it) and indemnify customers against losses.
Microsoft's willingness to name a specific number of patents being infringed suggests that it has devoted extensive time to studying the issue and drawing up battle plans. However, the company has limited options for what it can do next. It could sue Linux distributors like Red Hat, but the expensive, bloody fight between SCO and IBM illustrates what a long and painful path that is. It could sue Linux end-users, but there are few companies of size Microsoft could target that aren't also significant Microsoft customers. Suing your customers is a bit of a PR nightmare. It could bring lawsuits against individual end-users, as the Recording Industry Association of America has done against music copyright infringers, but again, there lie PR dragons. Also, any legal action would consign Microsoft to years of carrying out an expensive, unpopular campaign in courtrooms -- and Microsoft is the last company anyone expects to be eager to set off a high-profile legal war.
So for now, the company's strategy appears to hedge on FUD, and a smattering of well-publicized reminders of the big patent stick it can use to club those who resist its carrots.