Microsoft and the First Linux Patent Suit: Conspiracy Theories Explored

Rob Enderle

The first Linux patent suit brought is being creatively connected back to Microsoft through two employees that Acacia Technologies Group has hired from Microsoft. What makes it unlikely that Microsoft is behind this is that the targets of the action are both Red Hat and Novell.


Microsoft has zero interest in taking Novell to court right now and it is using the argument of indemnification to encourage others to create similar agreements. If the indemnification doesn't work -- in other words, if you are going to get sued anyway -- what's the point in doing an agreement with Microsoft?


The action is being brought by IP Innovation and Technology Licensing Corp., a subsidiary of Acacia Technologies Group, which specializes in enforcing intellectual property. Novell is evidently a client of Acacia but there is no known connection, other than the two recent Microsoft hires, to Microsoft. (Typically you don't take a client to court.)


Let's first explore the conspiracy theory that the open source folks would like to believe; a second, more-likely scenario; and what I think is actually the case.


Building a Conspiracy Theory


Just because it doesn't appear to make sense for someone to do something doesn't mean they wouldn't actually do it. Let's now assume Microsoft was behind this. What would its goal be in going after both firms? A recent post by Mary Jo Foley at ZDNet got me thinking of this scenario.


If the indemnification holds, Microsoft would now, as an apparent third party, come to Novell's defense and, because Microsoft was on both sides, easily win on Novell's behalf. Meanwhile, Red Hat would run up massive legal fees and be pounded by a much more hostile and sustaining action. Win or lose, the lesson would be clear: Licensing with Microsoft has solid benefits that can, after this is over, be more easily demonstrated.


It would be a brilliant strategy if Microsoft could execute it, but Microsoft leaks information like a sieve. It would undoubtedly get caught and the end result would be incredibly painful. In short, I view it as virtually impossible that such a strategy could get approval and the sequence of known events doesn't map to this strategy at all. The first known action on this IP was against Apple, not any known open source company (IBM appears to have protection).


Next Page: A Better Conspiracy


Building a Better Conspiracy Theory


Here is what may have happened. You have to think that Microsoft has been working on this problem for years now, but since its strategy is to avoid litigation and focus on the business side of diplomacy (I can think of at least one government that should have taken this path), executing on any patent issues has not been approved.


Now, central to any of these plans would be General Manager of Intellectual Property Brad Brunell. Let's say he was convinced that one of the painstakingly and expensively created but unused strategies could be very successful. His managers disagreed. Might he not go out and see if he could go to another company, convince it of the success of this plan, and then leave Microsoft to execute it?


Even if Microsoft wanted to, it couldn't stop him because it would mean admitting the company had created this plan and would likely have folks asking about others it might have considered.


Microsoft often gets burned for things it has discussed but never actually done. Novell might not have a problem with this because it could now demonstrate that there was a good reason to license with Microsoft and take a huge competitive step against Red Hat without looking aggressive itself. And since this probably wasn't Novell's idea in the first place, it is effectively an interested beneficiary, not part of some secret plot.


If the plan is a good one, Brunell not only makes a lot of money (you would expect him to be in for more than salary), but he can show his manager(s) that he was right all along. There is nothing more rewarding than making someone in your old upline look stupid after you have left. Trust me, though, doing this while you are still at a company (and I've done that too), isn't nearly as rewarding (the word "suicidal" comes to mind).


But the sequence of events doesn't actually support this. You would expect the strategy to come after the hire, and it is clear that Acacia had both acquired IP Innovation and gone after at least one other company (Apple) long before hiring either Microsoft employee. The hiring still appears part of an existing strategy, not the source of a new one. What makes this more likely than the first is that Brunell was on the board of Content Guard and there could be a connection between it and Acacia (given that they seem to be in the same space). Itt is still a big reach, though.


Wrapping Up: The More Likely Cause


Given that this kind of litigation is Acacia's business, the very high likelihood it acquired IP Innovation with this in mind, and it has already been going after folks successfully like Apple (which settled with the company in June), it is actually more likely that it developed its own strategy and decided it didn't want a run-in with Microsoft. It hired Brad Brunell and Jonathan Taub (former director of strategic alliances) to both ensure it didn't bump heads with that company and so it could go down a similar licensing path to the one Microsoft is currently on with open source companies. If you are going to go after open source companies, where would you look for the strongest skills? (hint: Probably not SCO if you wanted to be successful.)


If there was a similar strategy developed in Microsoft, it also benefits from that thinking through its hires; this is all consistent with the facts as we currently know them. There would be no reason even to loop Microsoft in unless Microsoft is also a client (which we don't know but would expect it would want to advertise) or to ensure Microsoft didn't aggressively come to Novell's defense.


While conspiracies are fun to talk about, the problem is they seldom work because core to a conspiracy is secrecy and, invariably, someone always talks.


In the end, I think this last is what is happening. Will Microsoft and Novell benefit? I expect that will be the case, but at the core of this is Acacia, not Microsoft, and it is that company that will be the source of any related strategy.

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Add Comment      Leave a comment on this blog post
Oct 15, 2007 5:33 PM Joe Howards Joe Howards  says:
Once again, you prove you are a clueless twit. HTH HAND Reply
Oct 15, 2007 6:29 PM Rob Enderle Rob Enderle  says:
Nice to know there are some truly deep thinkers out there... Reply
Oct 16, 2007 10:24 AM dfarning dfarning  says:
At the risk of losing my FOSS membership card, I have to agree with many of Mr. Enderle's points on this one.The current patent situation is not unlike the Soviet - U.S. relationship during the cold war. Everyone with nuclear weapons was threatening to use them. In the end, no one used their weapons because of the mutually assured destruction factor.Patents are like nuclear weapons. Not bad as a deterrent, but not very good as offensive weapon. There in no rational reason why Microsoft would want to start a patent war. Has Microsoft been trying to figure out how to use patents to their advantage, certainly. Do they use them defensively, yes. Are they ready to use them offensively, I doubt it. Would they use them offensively if they thought they could could do so with out getting caught, probably.Thought on why Microsoft isn't behind Acacia.Could Microsoft launch first with out anyone noticing? No, not now. First, disgruntled employees are leaving and disgruntled employees talk. Second, as a company, Microsoft is under a microscope. There is a large body of competitors who are watching their every move, many looking for revenge. Third, Microsoft has attracted the attention of several regulatory bodies. The EU seems a bit miffed about the whole antitrust thing. The ISO is looking at the OOXML issue. A couple of states attorneys general are making noise. If Microsoft make a move, Someone is going to talk, someone is going to repeat that talk, and someone is going to listen.Is launching a patent troll against open source good weapon for Microsoft t chose? No, it is too risky. While there may be a few open source companies that appear vulnerable. They are really pretty small. Nickel and Dimeing them is going to get old fast. Microsoft, on the other hand, has the two characteristics most desirable to a patent troll, exposure and cash. Once the troll gets some experience under their belt and some money in their pocket, it won't be long until the troll comes back looking to cash in big. Is a patent troll the best weapon against open source? No. For a traditional company, the decision to pay a patent license is pretty simple. Is the cost of settling less than the cost of litigating? A large part of the cost of litigating is doing research on prior art. It is costly to identify and assemble a team of experts in a particular technology.The distributive nature of open source makes assembling ad hoc teams of technology experts easy. Somebody somewhere will remember working with a technology. The challenge will be reducing the signal to noise ratio of these teams to a low enough level. Wikipedia serves as proof that the signal to noise ratio of a collection of community knowledge can be low enough to be useful. The community knowledge does not have to be prefect. Just good enough to make to patent troll look else where for their next target.We can go into some of the irrational reasons for Microsoft to let the trolls out next week. David Reply
Oct 16, 2007 2:47 PM Richard Wicks Richard Wicks  says:
Why is anybody paying attention to this clown? I'm sick and tired of hearing from people who don't know anything about the industry being repeated ad nauseum. Let's please hear from somebody competent for a change. Reply
Oct 16, 2007 3:01 PM Rob Enderle Rob Enderle  says:
I wonder if you actually read what I wrote and would like to know, specifically, what you disagree with. My guess is you just popped in to make a negative comment. An Ad Hominem attack like this does you no credit. If you can't argue from facts what is the point of disagreeing? Makes me wonder if you work for a PR firm. A lot of that going on right now unfortunatly.http://en.wikipedia.org/wiki/Ad_hominem Reply
Oct 16, 2007 4:55 PM Robert Blanchard Robert Blanchard  says:
Acacia is a patent troll. They create nothing but lawsuits. Someday I expect they will sue the Estate of Newton for violating their patent on gravity. Reply
Oct 16, 2007 7:22 PM Rob Enderle Rob Enderle  says:
Thanks David, Microsoft and companies in this class spend so much time and money fighting patent trolls I have a hard time believing they would want to fund one for any reason. The defenses, as you point out, of mutually assured destruction that they have don't work well, or at all, against trolls and I think they have developed a shared visceral belief that patent trolls serve no useful purpose other than fertilizer. Though, in this case, the fact that Novell is (or was) actually a client (Id really like to understand that), makes it clear this isnt a normal patent troll firm and does suggest there is something strange going on here. For instance, you would think you could settle out of court with an existing or past client, and if you wanted more clients you sure wouldnt take them to court. Of course the client relationship is with the parent and this is the subsidiary taking the action and it wouldnt be the first time a subsidiary didnt ask for permission first. One thing is while folks have connected the dots between the Microsoft hires and this legal action, there really is not hard evidence the two things are even remotely connected given the hires are with the parent and the action came from the subsidiary which could simply be a hands off investment. We are making connections on conjecture and just because it makes for a better story doesnt mean that story is true, though I would seem strange if the subsidiary didnt use the parents resources for something like this. Thanks for the nicely thought through post! Reply
Oct 17, 2007 7:09 PM Rob Enderle Rob Enderle  says:
Perhaps, first I've run into them though and wonder what they do for Novell... Reply
Oct 17, 2007 7:12 PM Cosmix Cosmix  says:
I see over at Groklaw that PJ is marshalling the troops in search of prior art. It will be interesting to see if they can come up with something. Reply
Oct 21, 2007 9:07 AM Ken Holmes Ken Holmes  says:
Rob, you mention, "The first known action on this IP was against Apple,..." Of course, Apple sued Microsoft in 1988 over the GUI. Xerox sued Apple midway through that suit, but apparently they had waited too long.I agree that Microsoft is not involved in or behind the current suit, although I do believe Steve Ballmer had prior knowledge and I don't believe he is too unhappy about it. Reply
Oct 21, 2007 7:04 PM len len  says:
And if either had been honest, they would have had to admit to having burgled Doug Englebart at Stanford.If the movie depiction was correct, Gates did admit it but only to Jobs who was being his usual arrogant self.Types like these need to learn from the Good Old Boy network that preceded them. Meyer outlived Bugsy by a long stretch because he understood that arrogance and shameless self-promotion are not good cohorts at a burglary. Reply
Oct 21, 2007 7:57 PM Ken Holmes Ken Holmes  says:
Len, thank you for your thoughts and for mentioning Doug Englebart. This has given me a whole new set of readings to enjoy. We are the beneficiaries of persons who have had vision beyond the bottom line.Regarding arrogance, true or not, Steve Jobs is credited with quoting Picasso, "Good artists copy; great artists steal."Nice touch about Meyer and Bugsy. Reply
Oct 23, 2007 7:16 PM Wolf Halton Wolf Halton  says:
This looks like another tempest in a teapot to me. When Apple sued MS there was no visible effect on the user-base of either company. The people looking for a reason to be scared will definitely be scared. None of this affects the average user. I could live with the idea that the multiple-windows-on-a-desktop idea could be somehow patented (didn't Xerox develop XWindows in the first place?) but if this is the case, shouldn't the suit be against KDE or the Gnome project. RedHat and Novell are distributing (several choices of) GUI with their respective distros, but they are not the ones claiming the IP of those desktops, are they? Reply
Oct 25, 2007 11:27 AM Robert Robert  says:
Rob,Any reason why you haven't touched on the interop partnership between MS and Turbolinux yet?The first word that came to my mind when I read about this the day after the MS announcement was - shrewd.Microsoft's making this agreement with Turbolinux is an impressive strategic move following their statements of embracing open source. Anyone who still wants to try to claim that Microsoft is behind the patent litigation between Acacia - RedHat and Novel is just another clueless twit. Microsoft doesn't need to do crap like that to compete with Linux. This is what it does:1. Microsoft appoints an open source savvy leader to head up its Windows Server platform.2. Microsoft forms another agreement with a Linux vendor who, interestingly enough, is the Linux footprint for the largest population market on the planet (Japan, China and India).Along with the Novell agreement, Microsoft puts RedHat in a vulnerable position to be severely weakened by strategic alliances with the strongest (or at least, the best choice of) competitors to RedHat. With this, Microsoft has a way to control its own destiny before somebody else does. It also shows how Microsoft accepts the reality of Linux and how it is willing to take the relationship in a win-win direction for those who are pragmatic realists. Turbolinux already has a supported version of Windows Media Player. The open source supporters in the oriental countries have demonstrated that they are not stuck in the war against Bill of Borg. It makes for a nice marriage and veni, vidi, vici.At this point, Microsoft is executing this whole open source strategy quite well. They recognize that they are positioned to pick and choose whom they will team up with. Anyone else who still tries to take them on head-to-head is going to get smashed.Face it Linux boys, Microsoft knows how to conduct warfare in this arena. The "technical and moral superiority" argument isnt going to get Linux anywhere on its own (although I seriously question the moral argument of open source). All the rants and raves that somehow Microsoft has to take Linux to patent litigation is just another childish fantasy that Linux is more of a threat to Microsoft than it really is. Microsoft recognizes Linux as a formidable challenger, but to much relief, has taken the wise direction of forming good alliances behind a coherent strategy instead of taking unilateral action for everyone to see the world their way. Reply

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