May 14th, 2007
Why Microsoft hasn't sued (yet)
Microsoft continues to make its claim that Linux violates its patents.
Chief counsel Brad Smith told Fortune last week open source violates 235 Microsoft patents.
It reminds me of some of the lists Joe McCarthy used to wave back in the day.
Software patents are not described in patent law. They entered our law through court cases, and the Supreme Court itself has yet to rule on a claim of this type. The most important case law on this is less than 10 years old.
The Supreme Court's most recent ruling on patents indicates a general toughening of standards, based on the idea that they should accelerate invention, not hinder it. Vonage is now trying to get the Supreme Court to rehear its lost case with Verizon based on the ruling.
Since courts are the source of this right Microsoft claims to have, it is very tenuous. It can be taken away by a court, or it can be overriden by a Congressional rewrite of patent law.
So in the end this is a political struggle. Microsoft knows this and is fighting it in a political way.
The Novell agreement, and all the cross-licensing agreements which have followed, are political efforts. Many big companies, starting with those in the Open Invention Network, oppose the ideas Microsoft is putting forth, so by getting big firms to sign papers — any papers — Microsoft hopes to remove them as political foes.
But time is not on Microsoft's side, and the cost of its intransigence keeps rising. Its ballyhooed Silverlight technology is going to bomb like Bob because many developers will simply refuse to deal with a Microsoft product, due to its stance on patents and Linux.
Microsoft is fast becoming the new SCO. The SCO vs. IBM case, by the way, is now at trial.
My opinion is that Microsoft is engaged in a software patent cold war with IBM, which previously made billions of dollars by licensing its patents before Microsoft got into the game. IBM's quiet response in 2004 was to release 500 of its patents, royalty free.
The idea that all this in the end may be a Microsoft vs. IBM battle and that this time IBM will win is just one of the many delicious ironies here. It's just a pity we're all caught in the crossfire.
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. You can follow Dana on Twitter. See his full profile and disclosure of his industry affiliations.
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