p2pnet - rss feed: Microsoft open-source royalty demands
p2pnet.net news view:- A few media outlets (Computerworld, Fortune) are reporting about Microsoft’s latest claims from Microsoft that various FLOSS projects infringe their software patents, and that FLOSS distributors should be paying royalties. While likely the best summary of why this is a non-event is the article on GrokLaw, I wanted to post a few talking points for those who want to think about this.
* like the SCO alleged “copyright” case, Microsoft is not disclosing the patents that these FLOSS projects are allegedly infringing. (See: ShowUsTheCode.com)
* When someone is alleged to infringe a patent there are always three options: license the patents, innovate around the patent, or go to court to have the patent invalidated.
* Software being defined as FLOSS means you’ve all the rights granted in the license without additional permission or payment. It’s not possible for the use of software to be royalty bearing and yet the software is FLOSS. Negotiating a Royalty-Free patent license (Offered by many companies, including IBM which is acknowledged to have the largest number of patents granted to any single company), innovating around the patent or invalidating a patent are the only options available to FLOSS projects.
* Depending on what study you trust, and whether you only include “novelty” tests (invalidating based on prior art), somewhere between 60% and 95% of software patents currently granted by the USPTO are poor quality. Poor quality patents are those that would be invalidated by a court for not passing adequate scrutiny under the useful, novel and unobvious tests. Many Microsoft patents have already been invalidated, once they’ve been disclosed to the alleged infringer. (See: Microsoft FAT Patent)
* Microsoft has yet to disclose what country these patents were allegedly granted in. We can assume the United States as they’re commonly acknowledged as being the jurisdiction with the worst patent quality problem, and thus would have the most inflated number of alleged software patents. As the US Supreme Court also recently ruled, software vendors can’t be held liable for infringements that may or may not happen outside the country, so would need to deal with the fact that most jurisdictions do not grants as many software patents as the USPTO does.
* The US Supreme Court recently made a ruling that clarified a new test for “unobviousness” which will likely cause an even higher number of software patents to be invalidated (See: Jim Rapoza on recent US Patent Rulings, A person of ordinary skill not an automaton)
* Given the massive number of low quality patents, it’s likely that all software of any complexity infringes software patents. This means while it’s likely that FLOSS projects infringe currently granted software patents held by Microsoft, it is equally likely that Microsoft infringes currently granted software patents held by FLOSS distributing companies. In fact, Microsoft has been found guilty in courts of software patent infringement more than any other company.
* Unlike copyright where infringement involves knowledge of the original, it’s possible, and quite likely, for patents to be infringed by someone who has no prior knowledge of the patent at all. In fact, most software authors avoid reading patents to avoid being tainted by them.
* Software being patentable at all is highly controversial, with most software authors and economists believing they’re harmful to software innovation (Wikipedia entry for “Software patent“, Software Freedom Law Center Files Brief against software patents, Research on Innovation papers, US Federal Trade Commission 2003 patent report (PDF))
* Opposition to information/mental process patents (software patents, business model patents) isn’t opposition to the patent system as a whole. Different subject matter exists in entirely different economic contexts, and most of the people who oppose software patents believe that patents for hardware or chemical compositions (drugs) are appropriate.
* Most parliaments have never debated the merits of the issue and decided that software should be patentable. In the United States it was a specialized patent court that allowed software patents, while in Canada is was CIPO in their Manual of Patent Office Practises (politically interpreting US court rulings and applying to the Canadian context). In Europe article 52 of the European Patent Convention denies patentability for “programs for computers”, and yet special interests like the patent office and patent lawyers have been abusing loopholes to grant software patents.
See also: European FFII: Frequently Asked Questions about software patents, Public Patent Foundation
Russell McOrmond - p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He’s also the CLUE policy coordinator.]
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Said a p2pnet reader in yesterday’s post on the subject:
This whole idea of patenting software is totally insane. Thousands of software application routines were published in books long before Microsoft came onto the scene with MSDOS. In fact, before the Apple-II came around, many of us were developing software for the CP/M operating system (S100 ring a bell ?). When the Apple-II came around, a company called Microsoft developed the Z80 Softcard which allowed Apples to run the CP/M operating system.
A few years later, when IBM was looking for an operating system, Microsoft was picked after Bill Gates purchased an operating system from another company. MSDOS was so close to the likeness of CP/M that it made it easy to transition over to IBM. When multi-tasking applications were introduced, each task was considered to be operating within its own task “window”. Interesting that Microsoft claims ownership to many software applications that were produced by other companies.
If Microsoft does indeed sue for software patent infringement, I believe many of their patents will be disqualified due to “prior art” or for “obviousness” reasons.
I also feel Microsoft let us down when it introduced the infamous “lock down” OS called Vista. Terminating the availability of XP simply put the “icing on the cake”.
Goodbye Microsoft.
Also See:
yesterday’s - Microsoft versus GPLv3, May 14, 2007
If your Net access is blocked by goverment restrictions, try Psiphon from the Citizen Lab at thIs the endSurvey: How Did Copyright Infringement Become Equated with Robbery? (of the Net) nigh?zze University of Toronto’s Munk Centre for International Studies. Go here for the official download, here for the p2pnet download, and here for details. And if you’re Chinese and you’re looking for a way to access independent Internet news sources, try Freegate, the DIT program written to help Chinese citizens circumvent web site blocking outside of China. Download it here.
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Tired of being treated like a criminal? They depend on you, not the other way around. Don’t buy their ‘product’. Do bug your local politicians. Use emails, snail-mail, phone calls, faxes, IM, stop them in the street, blog. And if you’re into organizing, organize petitions, organize demonstrations and then turn up on your local political rep’s doorstep, making sure you’ve contacted your local tv/radio station/newspaper in advance. Don’t just complain. Do something!
May 15th, 2007 at 11:02 am
Microsoft is a dinosaur, and we all know what happened to them don’t we?