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Microsoft Plays Patent Poker - holding a pair of dueces.

On Oct 24, 5:51 am, Roy Schestowitz <newsgro...@xxxxxxxxxxxxxxx>
wrote:

> Playing Microsoft Patent Poker
> ,----[ Quote ]
> | This time though, while Ballmer slinks away to try to con ... convince people
> | that Microsoft Unified Communications somehow offers people more than what
> | Cisco's VOIP (voice over IP) been offering customers for years, a patent
> | attack finally launches at Linux. Specifically, IP Innovation, a subsidiary
> | of Acacia Technologies Group, has filed a patent infringement claim against
> | Linux distributors Novell and Red Hat.

The problem with Patents and Open Source is that BOTH have an easily
documented archive of history.  It's not uncommon for a patent to be
nullified because prior art existed in an open source repository.  On
the other hand, it's much more uncommon to see a patent record that
actually proves prior art against an OSS project, and nearly
impossible to enforce the claim.

Remember, when OSS contributors publish their OSS software, or even
fixes and upgrades, all of the source code is usually kept in a CVS
repository.  The repository requires authentication to update, and
keeps a record of who make exactly which changes to what piece of
software.  If the submitter turns out to be an undergraduate college
student, and the plaintiff can't prove that the college student had
prior knowledge of the patented software, then it can easily be argued
that the patent was invalid in the first place since it could be
intuitively derived from available information by someone with common
knowledge of the related technology.

Conversely, if the OSS repository shows that the submission was made
before the patent application was made, and the prior art was not
listed in the application, then this could also nullify the patent,
because omitting the prior art would be implicit fraud.  If the
plaintiff actually has a record of having accessed the OSS art form,
then they could be counter-sued for triple damages, for attempting to
enforce a fraudulent patent.

Most companies file patents as a defensive measure.  Whether or not
the patent is granted, the application documents the information known
by the company at the time, and makes it much harder to enforce
similar related patents, or worse, having a disgruntled employee leave
the company, patent work done for his previous employer, and then
assign the patent to a holding company who attempts to enforce the
patent against the employer.

Ironically, the other "best defense" against patent lawsuits is to
publish the art as Open Source Software, along with the related
documentation and comments in the source code.  The act of publishing
as OSS protects the source code as copyrighted, prevents competitors
from stealing the software, making proprietary enhancements without
your permission, and prevents them from filing patent applications
based on your source code and documentation.

Many Linux distributors have filed for defensive patents on their
software.  They have promised not to attempt to enforce those patents
against those who use the software in accordance with the OSS
copyright licenses, but reserve the right to go after predatory
companies like Microsoft who might attempt to pirate or reverse
engineer the source code and integrate it into their Operating System,
Middle-ware, or applications.

This is one of the reasons that Microsoft has been PAYING companies
like Novell and Red Hat huge sums of money in addition to waving all
enforcement of their 153 defensive patents.  Microsoft knows it can't
actually prevail in such a lawsuit, but the exchange of nonenforcement
agreements expands the defensive net for all of the companies
involved.

Microsoft still has to make deals with about 100 other distributors
and about 2000 package and library organizations.  Most are non-profit
organizations, and as such can't sue Microsoft directly, but they
could broker deals that assure that all Linux users are immune from
patent infringement lawsuits by Microsoft or any other related
company.

***I'm not sure about this,**** but I think that one of the new
implied features of GPL-3 is that OSS posters can file for patents on
software they have contributed to GPL-3 projects using the code and
documentation to verify claims and devices portions of the patent
application as well as proof of ownership of the prior art.  This
could mean that Richard Stallman could file for patents on every
contribution to GNU and Linus Torvalds could file for patents on all
of the software contributed to Linux.  Furthermore, any Linux or GNU
contributor could file for patents on code they had previously
submitted to GNU.

In some cases, such as emacs, innovations such as pop-up windows spell-
checker integrated with editor, and about 2,000 other possible
patents, the patents themselves would expire the moment they were
granted, because the prior art is 20 years old.  The point is that the
applications would make the prior art a part of the patent office
archive records, and this could result in nullifications of thousands,
possibly even tens of thousands of existing patents as well as making
it much harder to claim originality of patents related to previous OSS
software.

Can you imagine Steve Ballmer's lawyers and Richard Stallman's
lawyers, locked in a room together attempting to iron out the
requirements and commitments of their respective clients?  Stallman
would be demanding that all of Windows and Office be licensed under
GNU, and Microsoft would be trying to get the right to have all GNU
code available to Microsoft for NDA protected proprietary extensions.
It would be an interesting negotiation, to say the least.

Microsoft may be trying to do an "End Run" by getting as many non-
enforcement deals as possible without directly confronting GNU.  This
would weaken the GNU negotiating leverage to some degree.

> http://www.eweek.com/article2/0,1759,2201579,00.asp?kc=EWRSS03129TX1K...



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