Supreme Court eases patent standards Caught in the middle are big corporate Linux users like Wal-Mart, AIG, and Goldman Sachs. Free-worlders say that if Microsoft prevails, the whole quirky ecosystem that produced Linux and other free and open-source software (FOSS) will be undermined. Microsoft counters that it is a matter of principle. "We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair." Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents. It's a breathtaking number. (By comparison, for instance, Verizon's (Charts, Fortune 500) patent suit against Vonage (Charts), which now threatens to bankrupt the latter, was based on just seven patents, of which only three were found to be infringing.) "This is not a case of some accidental, unknowing infringement," Gutierrez asserts. "There is an overwhelming number of patents being infringed." The free world appears to be uncowed by Microsoft's claims. Its master legal strategist is Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, which counsels FOSS projects on how to protect themselves from patent aggression. (He's also a professor on leave from Columbia Law School, where he teaches cyberlaw and the history of political economy.) Moglen contends that software is a mathematical algorithm and, as such, not patentable. (The Supreme Court has never expressly ruled on the question.) In any case, the fact that Microsoft might possess many relevant patents doesn't impress him. "Numbers aren't where the action is," he says. "The action is in very tight qualitative analysis of individual situations." Patents can be invalidated in court on numerous grounds, he observes. Others can easily be "invented around." Still others might be valid, yet not infringed under the particular circumstances. Moglen's hand got stronger just last month when the Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. For a variety of technical reasons, many dispassionate observers suspect that software patents are especially vulnerable to court challenge. Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) and NEC - set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux. So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It's a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers. "It's a tinderbox," Moglen says. "As the commercial confrontation between [free software] and software-that's-a-product becomes more fierce, patent law's going to be the terrain on which a big piece of the war's going to be fought. Waterloo is here somewhere."
Party crasher Brad Smith, 48, became Microsoft's senior vice president and general counsel in 2002, the year the company settled most of its U.S. antitrust litigation. A strawberry-blond Princeton graduate with a law degree from Columbia, Smith is a polished, thoughtful and credible advocate whom some have described as the face of the kinder, gentler, post-monopoly Microsoft. But that's not really an apt description of Smith; he projects intensity, determination, a hint of Ivy League hauteur, and ambition. We're sitting at a circular table in Smith's office in Building 34 on the Redmond campus, with a view of rolling green lawns splashed with pink-blossomed plum trees. In the 1970s and 1980s, Smith recounts, software companies relied mainly on "trade secrets" doctrine and copyright law to protect their products. Patents weren't a big factor, since most lawyers assumed that software wasn't patentable. But in the 1990s, all that changed. Courts were interpreting copyright law to provide less protection to software than companies had hoped, while trade-secrets doctrine was becoming unworkable because the demands of a networked world required that "the secret" - the program's source code - be revealed to ever more sets of eyes. Microsoft, Teleflex patently successful in high court At the same time courts began signaling that software could be patented after all. (A copyright is typically obtained on an entire computer program. It prohibits exact duplication of the code but may not bar less literal copying. Patents are obtained on innovative ways of doing things, and thus a single program might implicate hundreds of them.) In response, companies began stocking up on software patents, with traditional hardware outfits like IBM leading the way, since they already had staffs of patent attorneys working at their engineers' elbows. Microsoft lagged far behind. As with the Internet, though, Microsoft came late to the party, then crashed it with a vengeance. In 2002, the year Smith became general counsel, the company applied for 1,411 patents. By 2004 it had more than doubled that number, submitting 3,780. In 2003, Microsoft executives sat down to assess what the company should do with all those patents. There were three choices. First, it could do nothing, effectively donating them to the development community. Obviously that "wasn't very attractive in terms of our shareholders," Smith says. Alternatively, it could start suing other companies to stop them from using its patents. That was a nonstarter too, Smith says: "It was going to get in the way of everything we were trying to accomplish in terms of [improving] our connections with other companies, the promotion of interoperability, the desires of customers." So Microsoft took the third choice, which was to begin licensing its patents to other companies in exchange for either royalties or access to their patents (a "cross-licensing" deal). In December 2003, Microsoft's new licensing unit opened for business, and soon the company had signed cross-licensing pacts with such tech firms as Sun, Toshiba, SAP and Siemens. At the same time, Smith was having Microsoft's lawyers figure out how many of its patents were being infringed by free and open-source software. Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them. But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68. Now that Microsoft had identified the infringements, it could try to seek royalties. But from whom? FOSS isn't made by a company but by a loose-knit community of hundreds of individuals and companies. One possibility was to approach the big commercial Linux distributors like Red Hat and Novell that give away the software but sell subscription support services. However, distributors were prohibited from paying patent royalties by something whose very existence may surprise many readers: FOSS's own licensing terms.
Open-source schism Yes, free software is a more sophisticated concept than many people think, and it is subject to a legally enforceable license of its own. That license was written by free-software inventor Richard Stallman, who anticipated 20 years ago all the threats free software faces today. Foremost among those threats, Stallman understood, were patents. A gifted developer and prickly, uncompromising individual, Stallman, 54, quit his job at the MIT Artificial Intelligence Lab in 1984 to found what he considered to be a social movement guided by ethical principles. He set forth those goals in the GNU Manifesto, where GNU (pronounced with a hard "g" and rhyming with "canoe") was an acronym for "GNU's Not Unix." (It's a "recursive" acronym, an inside joke that programmers get. Trust us.) Free software would guarantee users "freedoms" that were ordinarily forbidden by proprietary software licenses, including the ability to see the source code, alter it, copy it and redistribute it. But while many people assume that Stallman simply ignored intellectual-property law, he actually mastered it and enlisted it in the quest to achieve his goals. He demanded that all contributors to GNU projects assign their copyrights to the Free Software Foundation, which Stallman set up and controlled. That meant that anyone who distributed free software covered by those copyrights had to abide by a license Stallman wrote, called the GNU General Public License (GPL). The GPL has teeth: Lawyers for the Free Software Foundation have been able to force developers who incorporated free software into proprietary products to open up their source code, for instance.
"Any free program is threatened constantly by software patents," Stallman wrote in a 1991 revision to the GPL. "We have made it clear that any patent must be licensed for everyone's free use or not licensed at all." This restriction became known as the "liberty or death" clause. When it comes to software patents, though, Moglen thinks that's exactly the goal to be achieved. "The free world says that software is the embodiment of knowledge about technology, which needs to be free in the same way that mathematics is free," he says. "Everybody is allowed to know as much of it as he wants, regardless of whether he can pay for it, and everybody can contribute and everybody can share." Back to the original point of this thread by the Op, looks like the Chinese aren't the only ones who don't believe in patents.
The British and Romans were brutish thieves.. They simply took by force. Sound familiar? It's time we recognize the true origins of these "borrowed" ideas. Remember, History is a set of lies that people have agreed upon.
Well, one should not discount the fact that the first operating systems such as IBM's OS/360 and DOS 1.0 though very primitive compared to today's complex systems are still the original. <img src=http://www.vintage-computer.com/images/dos1boot.jpg>
This distills what I think is the power of intellectual freedom and collaborative "crowd-sourcing". the power is moving from corporate R&D labs to the people. "The free world says that software is the embodiment of knowledge about technology, which needs to be free in the same way that mathematics is free," he says. "Everybody is allowed to know as much of it as he wants, regardless of whether he can pay for it, and everybody can contribute and everybody can share." Just as the music industry has to reengineer their way of doing business, so will many other businesses. I suspect McGreedy is perhaps more passionate about this topic than I
Are you seriously trying to undermine the incredible achievements of the British in science and technology? And for the record, I'm not British. Far from it. But for what it's worth, China's technological achievements are not even a sliver of what the Brits have contributed to the world in mathematics, physics, other natural sciences and technology. And given the scale of their achievements, relative to their size, they remain remarkably modest about them. I have great admiration for China and what it's achieving. However, this sort of blind parochialism worries me. To see how pernicious this sort of nationalistic agenda in academia can be, read up on Perelman, the Poincare congecture, and the controversy over counter-claims made by Chinese mathematicians.