Microsoft Sale Of Linux Patents Roils Open Sourcers

[Cees Binkhorst]

REPLY TO: D66 at nic.surfnet.nl

Ze zijn dus nu ook doorzichtig onbetrouwbaar ;)

Groet / Cees

PS. Deze aktie van MS lijkt me wel bruikbaar materiaal in een volgende
rechtzaak tegen hun?

Linux Foundation Executive Director Jim Zemlin charges that Microsoft's
goal in selling 22 patents was to get them into the hands of patent
trolls.

By Charles Babcock,  InformationWeek
Sept. 11, 2009
URL:
http://www.informationweek.com/story/showArticle.jhtml?articleID=219700648

Microsoft put 22 patents up for sale in July, listing them all as in the
"open source" category, with some of them, "Linux-focused." The ultimate
buyer was the Open Invention Network, a consortium of Linux backers that
wanted to take them off the market.

But in between Microsoft marketing and OIN ownership there was a bit of
behind the scenes maneuvering. OIN was never approached by Microsoft to
buy the patents, even though it was an obvious, interested party.

And the actual bidder, Allied Security Trust, was acting as a front man
for OIN as well as its own 11 members. OIN was approached by AST "early in
the process and invited to be a surrogate bidder," unbeknownst to
Microsoft, says OIN CEO Keith Bergelt.

When AST's bid won the auction, AST and OIN signed a deal that made OIN
the ultimate holder of the patents. The irony of the maneuver is that it
was an unlikely outcome.

AST normally bids for patents on the open market, licenses its members to
protect themselves from them, then quickly resells the patents. By using
this "catch and release" policy, it leverages its members investments and
gets income that allows it to protect its small membership from more
patents. One result is that many AST acquired patents end up on the open
market and in the hands of patent trollers, who claim royalties from
companies whose products might be covered by their patents.

Linux Foundation Executive Director Jim Zemlin charges that Microsoft's
goal in selling the patents was to get them into the hands of patent
trolls, via AST. It takes a minimum of $5 million for a company to defend
itself from a patent claim, even if the claim is later found to be without
merit, he said. Many companies settle rather than fight it out in court.

Furthermore, he said in an interview conducted as he traveled in Korea,
Microsoft knew all about AST's "catch and release" policy. AST is made up
of a group of reputable companies, including HP, a Linux reseller, that
buy patents together for their own protection.

AST offered cover for Microsoft, if it wanted to raise questions about
whether Linux was subject to patent litigation, without launching patent
battles itself. Even if a court ruled ultimately that a patent didn't
cover Linux, news of a legal battle over Linux would prompt some companies
to avoid adopting more use of Linux until the patent disputes disappeared,
Zemlin said.

"Microsoft thought it was undermining Linux in a way where they could keep
their hands off" the actual litigation, he charged. He commented more
extensively on the deal in a blog titled, Protecting Linux From Microsoft
(Yes, Microsoft Got Caught).

"It is important to note that we talked with multiple product companies
that are members of OIN as well as AST. If OIN wished to present an offer,
nothing would have stopped them from doing so," said David Kaefer, general
manager for IP licensing, in a statement to InformationWeek Friday.

Red Hat, which has been a target of Microsoft's patent claims in the past,
went even further. Microsoft used "marketing materials that highlighted
offensive uses of the patents against open source software, including a
number of the most popular open source packages," the company said in a
blog posted to its site Wednesday. Red Hat's Enterprise Linux is one of
those packages. The auction was Microsoft's "latest attempt to encourage
patent aggression by trolls against free and open source software," the
Red Hat blog stated.

Microsoft, asked to comment, said in a prepared statement: "We are
constantly evaluating our patent portfolio--which recently received top
ranking in the software industry--to ensure its makeup fits into the
business goals of our organization. These patents were deemed to be
non-core to our business and non-essential to our IP portfolio." The
statement was attributed to David Kaefer.

Microsoft did not respond to a specific question about whether it had
labeled some of the patents as "Linux-focused." It didn't respond by press
time to a follow up question on whether its marketing material included
suggested targets for patent claims.

"When an interested buyer for this technology was identified, after
discussing it both internally and with the potential buyer, we felt this
was the right direction to go in relating to these specific patents,"
Kaefer's statement concluded. The terms of the deal were confidential, he
added.

In February 2007, Microsoft President Steven Ballmer and General Counsel
Brad Smith claimed that it held 235 patents that were violated by open
source code; the Linux kernel and graphical user interface accounted for
107 of them. Companies with Linux products needed to reach a pact with
Microsoft that would give them the right to continue to distribute Linux
without danger of being sued by Microsoft, both executives said at the
time.

Ballmer said during that period he wanted Red Hat to reach such a deal
with his firm. Red Hat spokesman said it had refused.

Microsoft acquired the 22 patents several years ago in a larger deal with
SGI, the former Silicon Graphics Inc., and the patents have been labeled
by some sources as only concerning 3D graphics. OIN CEO Bergelt said
that's not correct. The patents are more valuable than that. Some of them
affect core Linux operations, he said.

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