MS makes mockery of interoperability

License free code from us, or we'll sue, says Microsoft's IP lawyer.

Paul Furber
By Paul Furber, ITWeb contributor
Johannesburg, 22 Oct 2008

Microsoft needs to get rid of its chief IP lawyer and its patent strategy if it wants further efforts at interoperability to be taken seriously by open source vendors and users.

In at least two interviews with IT publications this week, Horacio Gutierrez reaffirmed that the company intends to try and force open source companies to sign patent licensing deals or face lawsuits.

"If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licences and to our shareholders to ensure our intellectual property is respected," he told Cnet News.

The intellectual property that is trying Gutierrez's patience is not any line of copyrighted code, nor any trademark or trade secret. It's a bunch of patents that Microsoft claims it owns. In the bizarro-world that is US patent law, companies can get government-granted monopolies on procedures that are taught to programmers at high school as if they were some sort of valuable asset.

Microsoft owns many thousands of these and uses them as a club to wield against its competitors. License this method of checking that a programming variable is false or we'll sue, it says. Because patent litigation is inordinately expensive - we're talking millions of dollars - smaller competitors pay up to avoid the threat of legal fees.

But open source vendors are a different kind of enemy all together. If Microsoft sued a smaller Floss vendor for patent infringement, it would invite a kind of mutually assured destruction from any one of the big vendors who own patents that Microsoft itself infringes and hasn't licensed. If Microsoft wants to sue Red Hat, it should get ready for a sledgehammer in reply from IBM, which has more patents than anyone else on the planet - and happens to be a big fan of open source.

There are other risks to patent lawsuits: it gets things out in the open. If Microsoft were to sue a Linux vendor for, say, infringing on its super-secret patented method of checking variables, it would have to say what that method is. The community would then immediately hunt down code that predated the application and thus invalidate the patent. If no such code existed and the defendant was actually infringing, it would probably take days for its engineers to work around the method and make the lawsuit irrelevant. Or development would simply move elsewhere where programmers can write more than 10 lines of code to solve problems without treading on some arbitrary US toes.

Smoke and mirrors

As far as I can tell, Microsoft just wants its competitors to pay it money every time they breathe out.

Paul Furber, senior writer, ITWeb

So what's a patent-holder to do? The way Gutierrez seems to think will work is to threaten to sue - but without actually doing anything - and hope that vendors who don't want to call its bluff will be scared enough to sign a licensing deal.

Microsoft continually refuses to say what the patents are - you're just going to have to trust that they're valuable. From an InfoWorld interview this week:

InfoWorld: So you're not going to tell me what those patents were today?

Gutierrez: No, I will say this: Microsoft publishes every patent that Microsoft gets issued and we have had deeper, detailed discussions in the context of private licensing conversations, which, by the way, is the practice that every technology company follows. So to answer your question, yes, we have divulged them. We have talked about them with a number of companies that have shown interest in having a good faith licensing discussion with Microsoft.

InfoWorld: Can you tell me what one or two of them were?

Gutierrez: I can tell you that there have been a number of them and no, those conversations are business conversations that we tend not to divulge.

So, if you want to know what the patents are, you're going to have to approach Microsoft with a good faith intention of having a licensing discussion. In other words, you need to pay it money. This theme recurs many times in the interview:

"In December of 2003 we changed our patent licensing policy to declare that Microsoft was open for business. That is, Microsoft would be willing to license any of its patents to any third party, including competitors, on commercially reasonable terms."

Translation: If you want to do computing of any sort, you need to pay us money. Here's another:

"We start by saying that the fact that certain products might infringe on Microsoft patents is not really that interesting. Any company that has a significant portfolio would be able to say that about many products, whether they're open source or proprietary. What is significant here is that these are issues that can and are being solved through the mechanism of licensing. That is where my work and the work of the IP licensing team at Microsoft comes in, by turning those situations into potential collaborations that really answer what customers want."

Translation: The fact that certain products might infringe on Microsoft patents is very interesting indeed to us. It allows us to charge licensing fees from any companies without the guts to tell us to get lost.

Same old, same old

If there was any doubt that Microsoft was really turning over a new leaf and making a good faith attempt to become more friendly with the open source community, these two interviews with its chief IP lawyer should have dispelled it completely.

As far as I can tell, Microsoft just wants its competitors to pay it money every time they breathe out. So next time you hear about "interoperability", just bring up the patent issue and see if you can get any further than InfoWorld.

Software patents aren't recognised here, nor in Europe, so you can ignore them freely if you like. And companies such as Red Hat have shown themselves to be entirely unintimidated by vague threats, even to the point of having defence funds in case their customers get sued. Sorry, didn't I mention that? Microsoft threatens its customers if they find out they're using Linux - another admission from Gutierrez.

It's a pity really - I was almost starting to believe.