Patent Dispute May Reach Beyond Microsoft-Open Source

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Is Microsoft fighting a losing battle? That's the question posed by an op-ed piece in today's Los Angeles Times. Maybe so, the writer concludes.


The software maker abandoned its formerly vague patent infringement threats against Linux and open source somewhat when it pinpointed the number of Microsoft patents it believes are infringed. Interestingly, however, the company insists it has "no plans to litigate" the issues. Instead, Microsoft wants the Linux and open source users to license the infringed technology -- in much the same way Novell did late last year.


That may sound silly at first. If you're so sure your patents are being infringed, why not sue and make sure it stops, right? Well, there are a few reasons, and the LA Times story points most of them out.


First, the general climate in the world of patent law is not holder-friendly these days. Congress is in the process of revamping the patent system -- reform for which Microsoft was a key lobbyist, by the way -- and a recent U.S. Supreme Court decision in a patent infringement case reframed the "obviousness" test to make it harder to obtain a new patent and easier to invalidate existing ones.


Second, with respect to Linux and open source specifically, if Microsoft does sue, there are industry groups (the Open Invention Network, the Linux Foundation) and large, open source-friendly companies (IBM, Sun Microsystems) standing ready to defend Linux and open source users in court. What's more, if Microsoft raises its patents in court, they will be tested against the new and tougher obviousness requirements, which means there's a chance they would be invalidated. Then where would Microsoft be?


As the LA Times piece points out, whether Microsoft litigates the issues or not, the patent dispute with open source may well result in even fewer patent restrictions industry-wide than currently exist. But given that the trend toward open source and open standards shows no signs of slacking, that's not necessarily bad.