US Patent Law and Microsoft – Jeez!!!

I found this link in an article entitled “Microsoft’s Advertising Framework” on Glyn Moody’s blog.

I have been following the Patent saber-rattling by Microsoft and their simultaneous attempt to own the world’s data by trying to force through impossible document standards with feelings of unease, hilarity and cynicism… All at the same time.

The Patent to which Glyn’s article refers is – in my humble and non-legal opinion – complete hogwash. It reads just like a description of any page in any of the world’s advertising driven content networks like Google’s for instance.

How this could be:

  • An Invention
  • Unique
  • Innovative
  • Unlikely to come about by evolution
  • Having no prior art

is a complete mystery to me. What is the US Patent Office thinking it is doing by approving such things?

There is a cracking bit of typical Microsoft legalease at the bottom of the page too; it’s a bit like a disclaimer and catchall rolled into one and basically seems to allow them to use this patent for pretty much anything to do with advertising presented on-screen…

[0038] Although the forgoing text sets forth a detailed description of numerous different embodiments of the invention, it should be understood that the scope of the invention is defined by the words of the claims set forth at the end of this patent. The detailed description is to be construed as exemplary only and does not describe every possibly embodiment of the invention because describing every possible embodiment would be impractical, if not impossible. Numerous alternative embodiments could be implemented, using either current technology or technology developed after the filing date of this patent, which would still fall within the scope of the claims defining the invention.

[0039] Thus, many modifications and variations may be made in the techniques and structures described and illustrated herein without departing from the spirit and scope of the present invention. Accordingly, it should be understood that the methods and apparatus described herein are illustrative only and are not limiting upon the scope of the invention.

The US is a very mysterious place sometimes…

Put your money where your mouth is…

It really does look as though the big “M” has just upset too many people for this thing to be ignored or go away any time soon. All over the Internet there are blogs, news articles, wiki pages and even legal analysis of their patent infringement claims. And guess what? Nobody seems impressed at all.

In the last day or two several “counter” campaigns have started. Here are my favourites:

On the Digital Tipping Point Wiki, there is a list of over 600 users (and growing by the minute), asking for Microsoft to come on and sue them. (Some very funny comments and clear signs of anger in the community)

Here,, Tim Henderson invites readers to create their own Linux distribution and register it at The premise being that if there are a million distributions Microsoft will have to file a million lawsuits! (I thought this was a clever idea – very much in the spirit of Open Source)

Jonathan Schwartz (President & CEO of Sun Microsystems), on his blog yesterday said:

“… Sun has what I’d argue to be the single most valuable and focused patent portfolio on the web (and yes, we’d use it to defend Red Hat and Ubuntu, both)…”

The saga continues…

Drowning in their own FUD?

What a few days it has been!

The largest software company in world makes a couple of public statements regarding their business and claim unfair competition1 from the Open Source community (which is, for clarifications’ sake, pretty much anyone and everyone; from students to individual hackers to small and very large corporations world-wide).

What their true intention was, no-one seems to be clear, even Microsoft won’t explain. But the resulting comments from the industry have been nothing short of astounding:

  • Novell distances themselves from Microsoft as much as possible,
  • Industry experts say their claims don’t hold water.
  • Sun’s CEO explains to the would-be litigants why they are heading for meltdown,
  • Linus Torvalds tells them to put up or shut-up,
  • The author of a report which Microsoft used to start this whole fiasco says they got it completely wrong and about face!

And the list goes on, and on, and on…

From my own perspective I have found a great deal of humour and common sense in the many hundreds of blogs and news articles that have been posted in the last couple of days. There is a real sense that Open Source is gaining ground exponentially and that Microsoft don’t really have an answer.

The publicity this is generating for the Open Source movement as a whole is fantastic. For Microsoft, it must be a total PR disaster.

Out of all the comments and views expressed on-line, those that have been supportive of Microsoft’s stance have been almost non-existent. They don’t look to have many friends right now…

1.Someone PLEASE explain how a company like Microsoft can argue unfair competition? How many times have they been (and still are being) hauled before the courts? How much have they paid out for their patent infringements on others?

Microsoft making the FLOSS News

What a day today has been for FLOSS news! The ‘net is buzzing with the article published in Fortune Magazine this morning which explains how Microsoft is claiming Linux and other Open Source software products violate no less than 235 of their patents and that they could claim royalties from distributors and users!

The news appears to be that Microsoft are not asking for anyone to cough-up – yet, but that this is a FUD or scaremongering tactic to get the corporate world to sign up to Microsoft’s version of FLOSS (using Novell’s SuSE linux in particular) or go back to good old Redmond code.

I’m not sure if this is going to hold much water to be honest. Reading many of the commentators today, there is a general consensus that this is a kind of “Custer’s Last Stand”…

The feeling is that Microsoft must be hurting and have no real alternative:

  • They are losing customers to Linux, and, Mozilla and others and are having a hard time trying to get them back by being nice.
  • They shout and throw their toys out of the pram, cry fowl-play, and by doing so upset lots of their current customers and lose even more to FLOSS.

Either way it is hard place to be right now. There are three main problems with Microsoft’s stance:

Firstly, although the patent infringement claims themselves may be real, it sounds like it will be very hard (if not impossible) to defend most of them (recent court rulings in the US have thrown doubt on the validity of many software patents).

Secondly, Microsoft could end up in a “patent war”… Of the few that may actually stand up to legal scrutiny, what’s to say that IBM, Oracle, SUN, Red Hat et al don’t have software patents themselves which Microsoft may well be infringing? The Open Invention Network (OIN), holds thousands of software patents on behalf of the open source community and believes that it is “highly likely” that Microsoft infringes on some of theirs.

And finally, the Open Source community has repeatedly asked Microsoft to detail which patents are being violated and how, and have said that any claims with substance will be dealt with. And the speed of development in the FLOSS world means many of the “fixes” would surely happen before the ink dried on any legal paperwork.

Although most watchers seem to be in little doubt that, at the end of day, Microsoft won’t end up getting much out of this – It will spread some FUD (Fear, Uncertainty & Doubt) for a while, especially in the larger Enterprises where they could potentially have a lot to lose. Do some digging around on the ‘net and get your counter arguments straight. There are lots of links you can follow (if you’re quick) from our FLOSS News page at the open learning centre.

CNN have reprinted the original article which can be read here:

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