Microsoft's Patent Impasse

We’re not litigating. If we wanted to we would have done so years ago.

. . .

The bridge that we built is one bridge, one particular way of dealing with this problem. It’s not the only way in which the problem can be addressed.

. . .

It’s important for everyone to understand that there is a real problem with Linux patents and that there is a need for a solution.

—Horacio Gutierrez, Microsoft’s VP for intellectual property and licensing

Two Sides

A while back I talked about the fact that different sides of tech debates rarely use the same language and semantics when talking with (usually at) each other.

I keep getting that feel as I read more and more commentary on the Microsoft open source patent story.

• From Microsoft, I keep hearing this: we have patents that open source software infringes on. We don’t want to sue anyone, least of all our customers. Do you think we’re morons? Indeed, there’s no reason: we offer all sorts of agreements and “bridges” so that you can pay us for your use of those patents. As long as you pay (or we “reach an agreement”), this whole idea of being sued is nothing to worry about.
• From “the free world” (to borrow Sam and Bill’s phrase), I hear this: we don’t want to pay you. More over, you have no right (aside from The Law, which we think is incorrect) to demand such payment. Your patents are probably crap, anyhow, and I bet you’re infringing on all sorts of patents we and/or our friends have (read: we have a big red button we can push too). Thanks for confirming everything bad we ever thought about Microsoft.

I can’t help but feel that there’s a weird, hopefully unintentional disconnect around these two monologs. What we need to be talking about and reaching agreement on are the validity of (a.) Microsoft’s specific patents, and, (b.) software patents in general. Anything else is, largely, a waste of intellectual time and just more business for lawyers and bloggers.

Scenerios

There are several branches to this jalopy:

1. The global patent system is valid and Microsoft has valid patents that open source software infringes. Microsoft gets to call the shots on how much money — including zero — they get from who. The alternative to paying up is being subject to not complying with the law. That is, being illegal. Vengeful folks may launch their portfolio of patent nukes against Microsoft.
2. The global patent system is valid but Microsoft’s patents are crap. Microsoft gets nothing here except bad PR in the moment and about 10-15 years of distrust from “the free world” and their friends. See Steve’s comments along these lines for more. In this case too, the patent nukes could launch as well.
3. The global patent system is invalid but Microsoft’s has “valid” patents under that system. In this care, unless the patent system is reformed or Microsoft decided to “do the right thing” in the face of an invalid system, the consequences of 1 kick in: even if the system is crap, you’re still subject to The Law until you change it or get para-legal group agreement (including Microsoft) to ignore it.
4. The global patent system is invalid and Microsoft’s patents are bunk. In which case, the consequences of case 2 kick in.
5. Microsoft calls the whole thing off, narrowly avoiding dumping a tanker-full of gas on the low-burning fire (coals even) that is the current discussion around software patents.

Putting aside the last scenario, in either general case — valid patent system or crap patent system — the two areas of wiggle room are: Microsoft’s will and the validity of Microsoft’s patents. From my knowledge, it doesn’t seem like Microsoft is willing to “go public” with what the patents are, which is inconvenient for “the free world,” but brain-dead strategic for Microsoft. A poker player doesn’t show off the cards they have when they’re still hoping their table partners will fold.

Messaging

What chaps my hide, as we say down here in Texas, is Microsoft’s instance that everything is OK, nothing to see here; that is, “we’re not going to sue anyone.” While Sam and Bill’s recent post on Port 25 sort of narrowed down the scope of concern to “software distributers” (if I read it right, meaning that consumer and enterprise users wouldn’t be effected), it still has this that gentle threat of legal action as outlined above.

Sure, the stated Microsoft’s policy is “licensing not litigation.” Something along the lines of: well, we’re fully willing to work an arrangement, like we did with Novell so that none of these legal issues come up for commercial companies or developers.

The problem is, I don’t think “the free world” (inclusive of commercial companies who’d claim membership in that sphere) wants to work out an arrangement. Their implicit point is that the whole scenario is absurd or, at least, that they don’t like it.

Leading to one simple question: so, if “software distributors” don’t want to work out an arrangement, or “bridge,” what then?

Disagreement over base principals

Getting back to the problem of not using the same language and semantics, I’m sure Microsoft’s response which is perfectly valid in the context of of The Law would be “well, I mean, but then they’re doing something illegal…so of course we’d have to take legal action.”

And there, to be a bit repetitive, is the problem: I don’t think the “the free world” (those who Microsoft would say are infringing on their patents) want to work out “a deal” with Microsoft to avoid being sued about Microsoft’s allegations of patent use.

From there, it’s pretty obvious that any language that Microsoft uses, no matter what it may seem like to Microsoft, reads as only one thing to “the free world”: get ready to be sued.

It should be of little wonder, then, that “the free world” and it’s friends are not getting the message from Microsoft that “everything is OK.” They insistence that “IP bridges” are needed implies that there’s illegal activity going on in the open source world: that patents are being used without Microsoft’s explicit permission. That is, if it’s true that IP agreements need to be made, then it must also be the case that open source companies and developers are doing bad things.

If you buy that lay-out, then it may be sour grapes, sure. But “the free world” is going to be a little ticked no matter how much massaging the idea gets or, more importantly, how right and legal Microsoft may be.

In a world of co-creation, everyone is a potential patent infringer

To wrap-up, here’s a nice scenerio from “MKR” in the comments of the recent Port 25 post:

If I wrote a nice little application and posted it on the Internet, then the next day I’ve sold a million copies (at $1 a pop, with automatic digital distribution so I don’t have to do anything), and it turned out I had inadvertently used one of Microsoft’s patents, what would happen?

Would Microsoft sue for everything I’m worth, or would they seek a reasonable profit sharing agreement? It would be nearly impossible for me to recover from #1. People are worried about #1.

I think that’s the main issue. People don’t know who counts as a “commercial distributor”, since anyone can do that nowadays. It’s uncomfortable seeing Microsoft make these deals, and claim that there are x number of violations, without saying what they are or who they’re most likely to concern themselves with.

The answer to that scenario is ultimately telling of what Microsft’s intentions in all of this are. Really, to use Steve’s wording, I don’t see that Microsoft is out to do anything less than get “a better return on what they consider to be an asset – their patent portfolio.”

To me, that spells money, and if developers like the one MKR scenrio’s above aren’t willing to voluntarily give money to Microsoft (via “agreements”) for the use of patents, what’s left for Microsoft to do?

Disclaimer: parts of Microsoft are clients, as are parts of “the free world.”

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