Microsoft claims that free and open-source software violates more than 230 of its patents, according to a magazine report published on Sunday.
In an interview with Fortune, Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. OpenOffice.org is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.
It is not entirely clear how Microsoft might proceed in enforcing these patents, but the company has been encouraging large tech companies that depend on Linux to ink patent deals, starting with its controversial pact with Novell last November. Microsoft has also cited Linux protection playing a role in recent patent swap deals with Samsung and Fuji Xerox. Microsoft has also had discussions, but not reached a deal with, Red Hat, as noted in the Fortune piece.
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Microsoft chief executive Steve Ballmer is also quoted in the article as saying Microsoft's open-source competitors need to "play by the same rules as the rest of the business".
"What's fair is fair," Ballmer told Fortune. "We live in a world where we honour, and support the honouring of, intellectual property."
The story notes that some big tech proponents of open source have been stockpiling intellectual property as part of the Open Invention Network, set up in 2005 by companies like Sony, Red Hat, IBM, NEC and Philips. The article surmises that, if Microsoft were to go after open source, these companies' combined know-how might give it some patent weapons to go after Windows.
A Microsoft representative did not immediately respond to an email seeking comment.
Given how deeply entrenched open-source software has become in the computing industry, taking direct legal action against the open-source realm would be a complicated, hackle-raising undertaking for Microsoft. Customers use open-source software widely, and many major computing companies — IBM, Dell, Sun, HP, Motorola and Oracle, for example — support Linux work directly.
It's not the first time that open-source patent concerns have arisen. A 2004 study by Open Source Risk Management, a company selling insurance against the risks of using open-source software, concluded Linux could violate at least 283 patents, 27 of them Microsoft patents.
Patents and the open-source movement get along awkwardly at best. Patent law gives proprietary, exclusive rights to patent holders, but open-source programming is built on the idea of free sharing. Newer open-source licences sometimes address the issue by requiring contributors to open-source projects to grant users and developers of the software a perpetual, royalty-free licence to any patents that relate to the contribution.
Different companies have dealt in different ways with the open-source patent conundrum. For example, HP has taken a pro-patent stance, while IBM, Nokia, Sun and others have granted some rights to use some of their patents in open-source software.
The Open Invention Network remains a relatively young effort, but it has attracted participation this year from proprietary software giant Oracle and from Linux support seller Canonical. A company may license the network's patents for free, as long as they promise not to assert any patent claims against those involved in "the Linux environment".
The Free Software Foundation is working on a new draft of the GPL, one element of which will ban partnerships such as that struck by Novell and Microsoft.
Talkback
How about a little less talk and a lot more action. If Linux is using M$ patents, then show us. Talk without proof is meaningless.
"while its user interface and other design elements infringe on a further 65"
just as well they got their Vista to market before MAC got theirs there
A leopard doesn't change its spots and I'm told not to get hold of a tiger by its tail.
Notwithstanding that, I think the extent, nature and use of patents granted for software is a absolute disgrace.
Of course with M$, there's always the pot and the kettle.
One hand MS is saying that they should embrace the OS community, whereas on the other, then are trying to destroy it.
I wonder how much GPL covered software MS has used in its products, but not fully complied with the licence...I guess we'll never know whilst they remain propriety.
That wouldn't include Microsoft given their convictions.
But, past behaviour is a good indicator for future behaviour. In the case of Microsoft that would be spreading FUD. Like holding something in your hand, pointing it to someone and saying: give me the money or I'll shoot.
In real life that's considered to be criminal behaviour.
At Microsoft it's called marketing.
As for software patents in general. From early on warnings have been uttered that software patents would be used as weapons in an arms race. Like war lords use fear (FUD) and abuse of power to claim and hold their kingdom on earth.
There's nothing to gain with software patents. There's much more to loose.
Not that software patents will impact Open Source solutions. They're far too creative, fast moving and flexible to be held back by it. But not so the many little companies that have to deal with large multinationals with deep pockets which products they use and depend on to make their living.
But who cares for the little companies nowadays. They only provide a huge piece of job security and other political meaningless things nationwide. So the more sticks handed out to those that are political meaningful the better, right? At least, that would be the right conclusion to draw when considering political actions versus political words, right?