Microsoft's claims that open-source software infringes its patents do not apply in the UK, according to a top lawyer.
The software giant has said that free software, including Linux and OpenOffice, violates 235 patents that it holds. It has also said it will not sue businesses which use Linux distributions with which it has partnered, such as Novell.
But a leading lawyer, speaking in London on Wednesday, said that those patents do not cover the UK.
"Microsoft's claims are based on US law, which has no application in the UK," said Andrew Katz, a solicitor at Moorcrofts, a Thames Valley-based firm specialising in technology law.
Katz said that Microsoft only has 51 patent applications in the UK, including several failed and pending applications. By contrast, the company has 7,336 patents, and applications for 10,761 more, in the US.
"The possibility of infringement is vastly smaller in the UK," said Katz.
He added that, even if UK companies expand into the US or other countries with different patent regimes, they are unlikely to face any trouble.
Microsoft has said it will not sue for now over the patents, which it has not revealed by name.
As soon as Microsoft reveals the patents involved, it will lose any power over the open-source movement, said Katz, adding that Microsoft would find it difficult to enforce the patents without naming them. "As soon as they do [reveal the violating code], it will be engineered around," he said.
The situation illustrates Europe's more sensible approach, protecting intellectual property in software by copyright rather than patents, the solicitor said. "No-one has come to me with an even slightly convincing argument that a piece of software has been written that would not have been written without software patents," Katz said.
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Despite businesses' fears that open-source code may raise legal issues, very few businesses have so far faced any trouble. Katz said: "There are very few decided cases, because they tend not to arise, or reach court. I'm delighted — there isn't that much work for me out there."
Before becoming a lawyer, Katz worked as a software developer, and has released code under the GPL. He has spoken out against software patents for the last three years.
Microsoft could offer no response at the time of writing.
Talkback
The UK courts have ruled that software is not patentable. Hence there is zero chance of being sued by Microsoft for software patents.
The calculation of 51 Microsoft patents in the UK is a gross underestimate, and the conclusions of this article are seriously misleading. Microsoft have over 1900 published European patent applications, many of which will have been granted with effect in the UK. See www.ipkat.com for more details.
The talkbacks on this article prove just how difficult the area of software patents is. Microsoft says it won't sue at the moment anyway, but that's not the point. The number of patents it has which could concern the UK is open to debate, especially when you mix the consequences of UK and European law. I'd be interested in knowing, Woodpecker, why you feel the article was misleading, and how many UK patents you believe Microsoft holds - and the significance of them as well.
I agree that the area of software patents is difficult. The article is, however, misleading not merely because of the inaccurate count of patents, but because it also quotes a "leading lawyer" as saying that Microsoft's patents do not cover the UK. They may well do, but we cannot know until the patents are identified.
I do not have the time to go through each of the 1933 (at the last count) applications to see which have been granted, in what form, and whether they are currently in force in the UK, so I'm afraid I can't answer the question as to the significance of what Microsoft does hold. I am sure, however, that they will have fought, or will be fighting, for every one of them to have the widest possible scope. Unfortunately, the EPO is very slow at granting patents, so some of the applications will be in 'limbo', with an uncertain scope, for a while yet.
The FUDmaster has not named, and probably cannot name the supposed, offending code. However, with Linux being based on UNIX, and UNIX being around long before FUDCROSOFT, I would think that 'borrowed' code could be found in windoze rather than Linux. Windoze has a trackable record of buying companies, and their IP, and incorporating it in their OS. They have tried to patent other people's code, and they have been caught using other company's IP. They then purchase a license, but only after being caught redhanded, all the while crying innocence. Microsoft trust is a contradiction in terms.