By Steve Ragan May 24, 2007, 15:04 GMT
In a Fortune magazine article, Microsoft attorney Brad Smith and Licensing Chief Horacio Gutierrez said that free and open source software (FOSS) violated over two hundred Microsoft patents, and discussed how the company will get FOSS users to pay royalties. This sparked several debates online, nasty comments and some (Digital Tipping Point) were quick to shout “Sue Me First!” A week later Mark Shuttleworth posted his thoughts and the one that stands out is “Microsoft is not the real threat.”
Talking about the Fortune interview, Shuttleworth explained that FOSS developers should worry about. Going so far as to explain that Microsoft is more likely to fight on the same side as the developers, if there was ever to be a serious battle in the courts over patents, because they have more to lose then the FOSS community.
In the interview with Fortune, Microsoft used some of the same tricks to scare people in to paying royalties, mainly talking about lawsuits, and allowing the legal department a full interview with the press. That was done before, and again like last time many demanded that Microsoft put their lawyers where their mouth is and either sue or stay quiet.
“And I’m pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents,” Shuttleworth said. “Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity.”
Adding to that, he went on to say Microsoft also has a rather large target on their backs for this type of suit. The reason for the bull’s-eye is the rather large amounts of money the company has on hand, and because of their very business model depends on it they will have to settle or negotiate. Going to court would be too much of a risk for them.
“Microsoft already spends a huge amount of money on patent settlements (far, far more than they could hope to realize through patent licensing of their own portfolio). That number will creep upwards until it’s abundantly clear to them that they would be better off if software patents were history. In short, Microsoft will lose a patent trench war if they start one, and I’m sure that cooler heads in Redmond know that,” Shuttleworth concluded.
So what is the real threat? According to Shuttleworth, the danger is not from larger companies like Microsoft, but smaller companies not even in the software market who make the bulk of their money from patents. These companies make their money by owning the patents, and licensing them off for use. In the blog post, Shuttleworth pointed to Nathan (Myhrvold), the ex-CTO of Microsoft who owns his own company Intellectual Ventures, which is buying up patents at a rate that frightens many larger firms.
He is quick to point out that the term ‘Patent Troll’ is not the proper form for such companies because they are only making the best out of a bad situation. “They are only following the rules laid out in law, and making the most of a bad system.” The root problem is the patent system itself. The fact software patents exist needs corrected a stance he vehemently argues when asked about it.
It is only a matter of time before someone does sue GNU/Lunix or other FOSS developers. “I’m certain someone will sue somebody else about Linux on patent grounds, but it’s less likely to be Microsoft (starting a trench war) and more likely to be a litigant who only holds IP and doesn’t actually get involved in the business of software. It will be a small company, possibly just a holding company that has a single patent or small portfolio, and goes after people selling Linux-based devices.”
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