Monday, April 15, 2024

MSFT, Red Hat Disagree over Patents

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Microsoft made waves this week with their GPLv2 contribution of virtualization code. On the other side of the coin, Microsoft continues to take issue with open source vendors over the issue of patents.

One vendor that has called on Microsoft to be more open is Red Hat. In a blog post, Red Hat’s legal team praised Microsoft’s code contribution while asking Microsoft to change its stance on patents.

“To win the respect and trust of the Linux community, Microsoft should
unequivocally disavow such conduct and pledge that its patents will
never be used against Linux or other open source developers and users,” Red Hat stated.

Microsoft however has a different opinion.
Horacio Gutierrez
Corporate VP and Deputy General Counsel at Microsoft has blogged his own response to Red Hat’s call.

“Some observers question how a company can contribute to open source projects while, at the same time, insisting on respect of its intellectual property rights by its competitors,” Gutierrez blogged. ” In fact, these two things are not inconsistent, and striking a balance between them is one of the key things every commercial technology company must do in order to compete effectively in a mixed source world.

Microsoft has been consistent in its approach to the issue of IP and open source software. We have shown our openness to licensing our patented inventions on commercially reasonable terms even to our direct competitors.”

In my personal opinion, Gutierrez is however missing the point of why so many in the open source community have issues with Microsoft’s patent position. First off, to be sure – Microsoft has clearly made tremendous and commendable strides in working with open source vendors and technologies. The patent issue is a little different though.

For me, it’s not necessarily about whether software patents are right
are wrong — that’s another story. The issue is that for the last
several years Microsoft has stated that open source infringes on its
intellectual property with over 200 patents.

I don’t think vendors like Red Hat knowingly want to infringe on other people patents — and that’s where the issue is.

the most part, to the best of my knowledge, Microsoft has not disclosed
to Red Hat, or to anyone else in a public manner a full list of the
disputed patents. If Microsoft did so, then Red Hat and other open
source vendors could choose to knowingly license the patents and/or
develop different technology that does not infringe on Microsoft’s IP.

For example, efforts are already underway for the FAT patents
that Microsoft has identified in their open source lawsuit with GPS
vendor TomTom. 

In my simplistic non-legal laymans view, I don’t think
that it’s fair to say that anyone is infringing on anyone else’s
particular intellectual property – when the actual infringing
intellectual property hasn’t been clearly defined or stated.

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