Microsoft vs. Open Source: What's 235 Patents Among Friends?

Analysts talk about Microsoft’s claim that open source software infringes on 235 of its patents. Is it just routine FUD, or are we headed into litigation hell?


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It's a move that has the potential to radically reshape the software business. Or, it may be merely corporate saber rattling that has little real effect.

Whatever the case in the long run, when Microsoft general counsel Brad Smith told Fortune that open source software violates 235 Microsoft patents, it sent tremors through the tech industry.

“It’s going to create a lot of shock waves,” says IDC analyst Al Gillen, who notes that this kind of move has been expected from Microsoft sooner or later.

While Microsoft has made similar claims before – as in a 2004 speech by Steve Ballmer – this time is different, Gillen tells Datamation. “Putting a hard number to it and starting to be a lot more specific about it, begins to narrow down the discussion.”

Indeed, Microsoft’s claims have specific numbers attached, if not the exact patents allegedly violated. According to Fortune, the company claims that the Linux kernel violates 42 patents, and the Linux GUI violates an additional 65; email programs infringe on 15, and other open source apps violate an additional 68 Microsoft patents. OpenOffice – a direct competitor with cash cow Microsoft Office – violates 45 patents, Microsoft claims.

And with those numbers, corporate buyers of open source software have been put on notice. “If Microsoft begins to drive any kind of litigation or any further action, there’s going to be an awful lot of commotion in the industry,” Gillen says.

As Gartner analyst George Weiss notes, Redmond’s move is reminiscent of the SCO Group’s claims that Linux infringed on its intellectual property. “Excerpt this time we’re not dealing with SCO, we’re dealing with Microsoft” – a far larger and more sophisticated opponent.

A Cudgel Against GPL 3 (Stallman’s Blunder)

When Microsoft and Linux vendor Novell formed an alliance last November (presumably to help Windows and Linux software become more interoperable) it created the oddest of odd bedfellows. Not surprisingly, Microsoft brought a very proprietary sense of software licensing to the deal – which quickly upset the drafters of the General Public License.

Richard Stallman, founder of the GNU Project, has announced that the next version of GPL, GPL v3, would eliminate such deals. It’s unclear when GPL v3 will be finalized, but Weiss feels confident that it will exclude pacts like Microsft-Novell.

In response, Microsoft’s claim of 235 patent infringements is, “a retaliatory measure by Microsoft against Stallman’s GPL initiative,” Weiss says. “There using this as a cudgel against the GPL 3 that Stallman is trying to create, which would effectively, over time, cut out Microsoft and the agreement they have with Novell.”

But in the story’s oddest twist, Richard Stallman himself announced that a “thorough study” found that the Linux kernel infringed on 283 patents. (For a transcript of the speech in which Stallman announces that, go here. He does not mention Microsoft specifically.) Stallman, Weiss says, “made what I think is a critical mistake in announcing that he found some 283 violations – that’s the worst thing he could do.”

“So he put the whole Linux market on edge right there.” Microsoft, of course, is trumpeting Stallman’s comments about Linux violations.

Clearly, Redmond’s strategy isn’t intended to provoke warm fuzzies among Linux proponents. “Microsoft’s efforts to exert control over the Linux market absolutely infuriates Richard Stallman and the Linux market and the open source community in general,” Weiss says.

“If there’s anything they can’t stand, it’s an outside third party dictating to the users what open source applications they should be employing – and that’s exactly what Microsoft is doing. They’re interfering with the open source decisions of the user community in a threatening way.”

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