Sun exec accuses Microsoft of 'patent terrorism'

The efforts of Microsoft to pressure the Linux community over alleged and unspecified patents is akin to "patent terrorism", according to an executive for Sun.

Sun, which had some patent troubles of its own with Microsoft until they were resolved in mid-2004, says that Microsoft's recent tactics are "going against the spirit of innovation around software".

In recent times, Microsoft has struck legal agreements with Linux distributors Novell, Xandros and Linspire, pledging not to sue users of these distributions over alleged patent violations — none of which have yet been tested in a court of law.

In return, the Linux distributions have agreed to varying conditions around the distribution and use of their software — many of which fly in the face of their open-source heritage.

"What we're seeing though now can be loosely described as patent terrorism, where people are using their patent horde as a threat," said James Eagleton, systems product manager for Sun. "It's almost like a cold war stand-over tactic; where I have these patents and if you breach these patents, I'm going to come after you and sue you."

"That's totally, from Sun's point of view, going against the spirit of innovation around software. No-one, certainly in the OS development community, wants to have these doubts lingering over them, especially users," he says. "No-one [wants a situation] where you have to think, if I go and use this open-source software, who knows who's going to come after me for damages and claims."

Eagleton says that Sun, and to a lesser degree IBM, have far more palatable approaches to patent protection.

"One of the things that Sun has done with OpenSolaris, for example, has been to put in place an open standards approved open-source licence model — the CDDL [Common Development and Distribution License] — that provides indemnification to the users," he said.

IBM has also introduced "non-assert covenants" across a range of standards the company has been involved with, Eagleton said.

Earlier this month, IBM released over 150 patents, in an exercise through which the company claims to "defuse the growing tide of litigation around software IP".

"[IBM] believes that within these standards there are some patents that IBM own, but they're issuing non-assert covenants — basically a covenant to all the users of that standard — that IBM will not come after those users," Eagleton explained.

"From Sun's perspective that's a great thing. We've really encouraged IBM to go and do that. In fact it's the same approach that Sun has taken in many of its implementations of standards prior, such as Security Assertion Markup Language (SAML) and certain other areas."

But while he encourages IBM's strategy as a counterpoint to that of Microsoft, Eagleton says there is a "slight sticking point" to IBM's non-assert covenants.

"If you look at the wording, [IBM] talk about this thing called 'necessary claims'," he says. "Basically it leaves a little window of opportunity there where [IBM] can apply a 'necessary claims test' [to prove] whether it was necessary to use that standard and if they could have done it by some other means. It leaves a little window of opportunity to come later on for IBM to follow up with some action."