Insight

Microsoft’s critics miss the point entirely

Brad Smith and Horacio Gutierrez Microsoft’s critics ask. worst, an opponent would face and go as deep as they want us would have known exactly what The main problem with such a damages payment and the to go. Our experience has been they were doing when they an analysis, however, is that it prospect of negotiating an every time we’ve done that, it agreed to speak to Fortune ignores the simple truth that ongoing licence fee. On the other doesn’t take companies a long magazine about Microsoft’s Microsoft is probably as eager to hand, should things go wrong for time to figure out that there is an relationship with open source avoid the court house as any Microsoft, further legal action issue here,” Gutierrez told Roger software. In talking about 235 defendant would be; even more would become much more Parloff, the Fortune writer who infringed Microsoft patents in so, in fact. General counsel difficult, while the Supreme interviewed him. open source offerings such as Smith actually says in the Court’s decision in KSR v Neither should Microsoft be Open Office, the Linux kernel, interview that the company had Teleflex raises the greater condemned for putting up two Linux graphical user interfaces considered litigation as far back likelihood of falling foul of an such senior figures as Smith and assorted FOSS programs, as 2003, but had ruled it out: obviousness claim, leading to and Gutierrez to outline an the two of them would have “It was going to get in the way the invalidation of the patent approach to what is a anticipated the waves of attack of everything we were trying to being litigated; something that complicated situation. The they would be subjected to from accomplish in terms of could potentially prove company’s preferred option, it the company’s vast legions of [improving] our connections with devastating. Microsoft would be seems, is to negotiate solutions. critics. So the question is: what other companies, the promotion unwise to open itself up to such This is what lay behind its deal did Microsoft’s general counsel of interoperability, the desires of possibilities, especially when, to with Novell last year, under and its head of licensing stand to customers.” Which is fair the disappointment of many, its which each company promised gain from opening themselves up enough, bearing in mind that at business continues to thrive. not to sue the other’s to such abuse? least half of the Fortune 500 It would be even more unwise customers. Microsoft has also For many in the open source companies are thought to use to take such action knowing that approached a number of community and beyond, the Linux in their data centres, not to this is exactly what many on the individual companies, while answer is obvious. They see it as mention the thousands of other evangelical wing of the free others have made their own another case of what they smaller outfits that do the same. software movement want to do. approaches to Microsoft. This is consider to be Microsoft’s bully- After all, it is never a good idea They want their day in court and all to the good and shows that boy tactics. The company, they to sue those whose business they want to argue that software Smith, Gutierrez and the people claim, is sending out a message you rely on. should not be patentable. Why on they report to are prepared to that it is about to open the But there will be more to earth give them the chance? play a long-term game, despite floodgates on a wave of litigation Microsoft’s calculations than just Instead of seeing bad faith in the fiery words of Mr Ballmer. designed to bring the open wanting to avoid confrontation the Fortune piece, therefore, Outside of the software source community to its knees. with customers. There is also the maybe it would be wiser to take it utopians, Microsoft knows that, After all, isn’t this exactly what small matter of what would at face value: two of the most by and large, it is dealing with CEO Steve Ballmer has been happen if the company actually senior players on the legal staff businesses that are using free implying for months? In February, lost a suit. Even supposedly rock- at Microsoft outlining how the software not for ideological for example, he told financial solid cases can fall foul of the company plans to deal with the reasons, but because it solves a analysts in New York: “Open whims of a US jury and there is challenge open source presents. problem at a good price. Many source is not free, and open very little that is rock solid about If Microsoft does believe that free of them also have their own source will have to respect the most patents relating to software infringes on its patents, proprietary software; quite a few intellectual property rights of software. To go to court would be there is nothing remotely have dozens, hundreds, even others, just as any other a huge risk, as Microsoft would unreasonable in saying so. thousands of software patents. competitor will.” Seen in that actually have more to lose than Neither is it unreasonable not to All such companies have a stake context, what else could Smith its opponent. specify in precise terms what in maintaining the status quo. and Gutierrez be planning, If the worst came to the patents these are. Outside of While Microsoft would have most issuing a writ, no company does to lose from any unsuccessful this – doing otherwise is an open legal action it pursues, all Continued from previous and Europe needs to be ready invitation to a string of software patent-owning for it. Imagining this future is a declaratory judgment actions. companies – and, we reiterate, show of solidarity between the brave first step, but there needs However, in negotiations it seems there are a number of very big EPO and the European to be more. Without involving that the company is very happy ones that also use and advocate Commission throughout the other influential bodies and to discuss specifics. “We do. But open source – would be losers Patent Forum, historically the two translating ideas into actions, in private conversations in the the day the Supreme Court bodies have not always seen eye the EPO’s scenarios project is process of licensing discussions issues a decision which finds to eye. Many observers would nothing more than an with companies that are looking what they own to be say that behind the scenes they intellectual exercise that will do in good faith for ways of resolving unpatentable. Given this, quiet, still don’t. little to prepare Europe for the the situation … we walk through responsible deal-making is by far The world is evolving fast next 20 years of change. a number of exemplary patents the best option.

6 Intellectual Asset Management June/July 2007 www.iam-magazine.com