You don’t scare us, free software proponents tell Microsoft

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Microsoft Corp.’s demands for royalties from users of open-source software are just “scare tactics” to convince more companies to sign cross licensing deals with it, say some “free software” proponents.

But at least one open source advocate said statements on “patent infringements” attributed to Horacio Gutierrez, Microsoft’s vice-president, intellectual property, could be an indication the company’s earlier “covenant” with Novell Inc. not living up to expectations.

Open source software, including Linux, violates 235 Microsoft patents, and Microsoft wants its distributors and users to start paying royalties, Gutierrez reportedly said.

“This is not a case of some accidental, unknown infringement…There is an overwhelming number of patents being infringed,” the Microsoft executive was recently quoted as saying in Fortune magazine.

The Linux kernel violates 42 patents and the operating system’s user interface infringes on 65 more, according to Brad Smith, general counsel, Microsoft.

He also said the Open Office application’s operating system suite breaches 45 patents, and the open-source e-mail applications infringes on 15 more, while other open-source software breach 68 patents.

One Canadian “free software” advocate, however, dismissed such claims as mere “posturing”, and said they are very unlikely to form the basis of an actual court case.

“If Microsoft were serious about it, the company could have issued a cease and desist order to firms, developers and individuals using the software,” said Russell McOrmond, policy coordinator of the Canadian Association of Open Software (CLUE).

He believes Microsoft decided to air its allegations in a magazine article as the claims won’t stand scrutiny in court. “More than 60 per cent of their claims would probably be thrown out for failing to meet patent criteria.”

For software to be considered patent quality, McOrmond said, it needs to undergo various tests and prove to be of “useful value”, a “novel development”, and an “un-obvious invention.”

He said Microsoft itself, might have difficulty if faced with a “prior art” test to determine if it was the original developer of its software products.

He also said courts around the world have been “hesitant” to rule on software patent issues because “unlike other manufactured goods, software products do not lend themselves to such rules.”

McOrmond said the European Patent Convention recognized that a piece of software is a product of a mathematical algorithm and therefore not patentable.

While patents may be applicable to other products, patenting software is detrimental to innovation, he said.

With the absence of any merit in court, Gutierrez’s statements could be a tactic to scare users of open source software and convince companies to sign co-licensing agreements with Microsoft, said McOrmond.

Following the lead of Novell and Samsung Electronics Co. Ltd., Dell Inc. signed such a contract that indemnifies it against Microsoft patent claims over Linux.

Some industry insiders raised questions about whether such alliances made any sense. “If the Novell-Microsoft technology partnership [is] really as solid as Microsoft keeps claiming, why does Microsoft need to raise questions about open-source software’s legality,” said Mary Jo Foley in herrecent blog.

She said Redmond is probably putting pressure on other open-source software vendors to follow Novell’s lead and sign covenants not to sue.

Microsoft CEO Steve Ballmer can point to these agreements when he wants to scare customers away from open source, Foley claimed.

Her remarks are echoed by another community Web site.

“I take it the Novell deal isn’t working out as well as [Microsoft] thought…and it’s harder to find customers than they expected…,” said the Groklaw.com site – that offers resources on Linux and litigation.

Groklaw.com said without such agreements, Microsoft would find it hard to press patent claims because of a “stronger GPL (general public license).”

A GPL is a free software license that provides the right to run, study, distribute and improve upon open source software.

The Web site noted that Microsoft had previously said some of its customers use Linux in a mixed environment.

“To actually sue, Microsoft would have to sue its own customers,” it noted.

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