If Linux Infringes Microsoft Patents, Where Are the Cease and Desist Requests?

Lora Bentley

In a recent interview with IT Business Edge, LXer.com editor-in-chief Don Parris said the patent problem that has arisen between Microsoft and Novell could be resolved amicably -- well, as amicably as anything involving Redmond and open source can be -- if Microsoft would simply issue cease and desist requests to the open source coders that it thinks have infringed its patents.


That, of course, begs the question: Where are the cease and desist letters? Not to mention, "Where is the offending code?"


After Microsoft CEO Steve Ballmer told conference attendees that Linux uses Microsoft code, and that's what motivated the company to enter into the patent agreement with Novell, Groklaw bloggers asked him to point out the infringing code so developers could get rid of it.


It could be as simple as that. Instead, we have Microsoft and Novell scrambling to negotiate better covenant terms, folks at the Free Software Foundation determined to tweak the GPL v3 to void the agreement, and the rest of the open source world pondering whether this single deal represents the end of open source as we know it.


What's so hard about asking someone to stop using your code? It sure seems easier than all the fuss. Unless fuss -- or FUD, as many speculate -- is really what you're after.

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Nov 23, 2006 9:00 AM Dean Pannell (aka dinotrac) Dean Pannell (aka dinotrac)  says:
The thing that really makes this suspicious is that notice is a significant component of damages in a patent infringement action. That's why you see patent numbers on products and packages.If Microsoft thinks it's sufficient to say that Linux has somehow infringed something, they are wrong. Anybody can say that about anything. It has no weight. If Microsoft actually cares about a patent recovery, not only should they provide specifics, they need to.Couple this with Microsoft's support of SCO and it's action that ran into a brick wall called IBM, and you have an updated version of the little boy who cried "Wolf!!". Sooner or later, that little bald headed boy is going to run shouting "infringement", and nobody's going to listen. Reply
Nov 23, 2006 3:18 PM Peter C Trenholme Peter C Trenholme  says:
I'm not a lawyer, but I think that, if a patient holder is aware that someone is using the patient without their permission, and if they then fail to issue a "cease and desist" order, then they have waived any enforcement of the patient.From Balmer's statement I think we can reasonably conclude that he believes that Microsoft holds some patients that some components of some Linux distributions are using.  So, if I'm correct, then failure to notify the holder(s) of the copyright to the code “violating” the patient of the violation (of which they are aware) will, effectively, make the patient unenforcible. There's probably some fuzziness in the law about soon after becoming aware of a violation you must take action, but I'd think that Balmer has, at least, started the clock ticking.  It is, of course, possible that the only patients being violated (of which Microsoft is aware) are for things in software written by Novell, and not in any “Open Source” software distributed by Novell. Reply
Nov 23, 2006 5:44 PM D.C. Parris D.C. Parris  says:
Hmmm... I don't think patents work quite the same way as trademarks.  If you trademark something and fail to enforce your trademark, you lose the right to do so.  Patents, however, are a different ball of wax, and I don't believe the same requirements apply.  The real problem is that Ballmer is beating the water to scare the fish.From an ethical standpoint, I would much rather someone approach me and point out my error, rather than threatening me.  That is the ethical approach, and the approach used by the FSF and Harald Welte (GPLViolations.org).  Indeed, they spend a fair amount of time working to resolve GPL violations without going to court, and I believe there have been very few cases that have had to go to court.Whose customer would you rather be? Reply
Nov 23, 2006 5:56 PM werner werner  says:
Its doubtful that the customer owe something to Microsoft at all, inclusive when Novell would have violated any patent right.Already the a priori unexistence of any responsibility by consumers makes the deal with Novell to be a fake:a corruption of some 300 Mio.$ that Novell participates, and the establishment of a constant forwarding of money to Ms.for each used Linux -- in order to establish publically and (at least in effect) for administration and justice a 'recognize' of patent rights and royalty rights over Linux.There is no room for other interpretations, observing Ms.statements like:all users and programmers would owe Microsoft;they are potentially object of sues by Microsoft;programmers can buy them free by programming gratuitly (only) for SuSE/Novell/Ms.-Linux .And Linux users should not make the mistake enter now in defense and try to justify them -- but oversee that its Microsoft whom have to justify heself.a)The legislations of more and more countries follows the 'objective, solidaric/collective responsibility' of the conjoint of the producers in front of the customer.The customer dont need to enter in the game of 'division of rights and acumulation of obligations' by the producers, or know/proof the (easily fakeable) distribution of responsibilities and faults among them.For any objective defect of product or service, the customer can sue any, some or all of the firmas contributing anyhow on the process of production or profits.And its problem of them afterwards regress them among them sukcessively in the same manner.And anywhom who claims patent rights, is automatically within the conjoint of producers, because he claims any contribution and profit on the object/service.From this its completely clear, that any defect of the product (such like, patent rights) have to be cleared among the producers and not with the customer.b) Microsoft dont have any patent or copyright on Linux code.This one can say clearly, until they proofs the contrary.Inclusive, because of the presumption of the inoccency.In opposite, the claimings by M.could be - depending on what country - mobbing, calunia, difamation.c) Microsoft would not have to proof their patents, but also that the user without Linux would have buyed Windows (instead of f.ex.FreeBSD.Minix);what exact advantage he had by using Linux;etc.d) Parts of the informatics, especially an operation system, are nowadays Public Service, unpatentable, earlier patents ressolve them.Linux is the official, public OP sistem;Microsoft in sensus strictus illegal and need a concession.Certain constitutional and basical rights defined by the International Law defin the international public order.Any people has only right to peace, souvereignity, state when it respects the Int.Right and its objects.Thus its an obligation and a right of every state to maintain this basical functions.These are the public services, intimely connected with the souvereignity.The state can concess such services to privates, however, always completely under its rules and disponibility.i) The public service of each country has the right, and also do, to perform autonomy in the administration, ensign etc.Almost all countries, by means of their universities, administration, financied by public money (salaries;subvention) etc.contribute to open source projects, nowadays mainly Linux.Thus, open source programs are a public service and a souvereingity function which cannot be limited by other countries or their 'firmas'.The products belongs, moreover, to the public domain. Reply
Nov 23, 2006 5:57 PM werner werner  says:
ii) The international right (f.ex.UNO Res.2200A) includes the right of each person to participate on the tecnical progress.This includes nowadays the use of computers, inclusive in ensign;thus, its delivery by the state is a public service.Children f.ex.in Africa cannot use computers because/when there is a privat OS.It may be a 'problem' of the state to warrant this right - this however dont mean that then the state would have to pay some foreigner firma to buy these things, in contrary, to adquire autonomy by own forces.Unnecessary to explain, that the function of patents is only to give a preference against other sellers in commerce in order to stimulate inventions, but not to justify conrtolling, disturbing the development of the own and other socyities or similar practics from the book of the 12 mafiosos of Zinon.Microsoft passed all limits.The only adequade is now, denuncions and penal persection, IN SO MANY COUNTRIES AS POSSIBLE, by diffamation, extorsion etc of the Linux users;attentat against the use of a public service (users);attentat against publical functions (administration, universities to contribute on Linux);usurpation of a publical function (sell without concession Windows);because of the faked agreement with Novell, fraude, inclusive fraudulent preparation of documents and proofs for administration and justice (trying to establish with Novell a 'recognize' that Microsoft have patent rights on Linux).And such attentates against their souvereignity and publical functions and administration, any state has the right to punish with the dead penalty. Reply
Nov 24, 2006 8:51 PM James James  says:
What I never get with this is the fear to use Free Software it is suggested  companies have due to the "liability" risk but the software source is visible, anyone with a claim can have looked seen and pointed it out.  They are willing to use closed code though with no ability to for example see if (I don't suggest they have just put it as example) Windows contains GPL'd code that it shouldn't   Reply
Dec 30, 2006 9:08 AM Rex Ballard Rex Ballard  says:
This could be a problem for retailers who usually only get the home edition version.Microsoft has also placed new license restrictions on the use of Windows libraries with WINE. Now, those who wish to use WINE should purchase Crossover instead of buying a machine with Windows, since Crossover provide a (limited) set of libraries which have been licensed from Microsoft.Of course, all of this could backfire.Remember when Microsoft tried to strong-arm corporate customers after the release of Windows XP? Microsoft gave them 30 days to sign or renew support contracts, at triple the price, or they would be 'on their own'. Shortly after that, Microsoft introduced their automated update service to end users of OEM software, and many businesses began making plans to transition to Linux. Most companies could make such a transition within 6-12 months if Microsoft tries another stunt like that.Today, Microsoft Windows is installed on almost 99% of the machines sold by the top 5 OEMs - because Linux users have found that a Windows license which allows them to run Windows applications under Linux is worth buying a machine with Windows OEM license.If Microsoft places too many restrictions, or increases prices too much, Linux could gain a more dominant role on the desktop, as corporate customers begin to request XP, with it's less restricted license instead of Vista, and start installing Linux as the primary OS and XP as the client OS.Worse, corporate customers may simply refuse to replace or upgrade the machines until Microsoft decides to "play nice with Linux"on the desktop. Microsoft may go kicking and screaming, but if the OEMs suddenly find that the only machines that are selling are machines designed to run Linux (AMD-64 and Intel Duo), and that customers are shifting brands to get terms that meet their needs, possibly with XP, or that they just simply delay ordering ANY OEM machines, the OEMs will be putting the screws to Microsoft.Keep in mind that OSS and Java have already begun to knock the foundations out from under the Microsoft monopoly. FireFox has been downloaded by nearly 200 million different machines, and these downloads can be freely and easily distributed to others or loaded via shared corporate drives. Some estimates indicate that FireFox may have been deployed on almost 1/2 the PCs in use.OpenOffice has similarly been downloaded and deployed on over 200 million workstations that we know of, and again, these downloads can be freely redistributed.Java 1.5 and 1.6 are now living up to the promise of "write once, run anywhere", and numerous Java desktop applications are now available for both Windows and Linux. This includes both OSS applications such as Eclipse, as well as commercial applications such as Rational tools, StarOffice, and other leading commercial applications.Many applications written for UNIX workstations, such as CAD/CAM, Simulation, and 3D graphics tools and applications, have now been ported to Linux and are available - for a price.Microsoft is resorting to Fear, Uncertainty, and Doubt, to try and reduce the support for Linux, but this may backfire and reduce the support for Vista.  Reply

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