Microsoft and Patents

Parsing the news about the Microsoft claims that open source software violates 235 of its patents has its moments.  Microsoft is making noises that are similar to the tack of SCO and IBM:  you have violated our patents but we're not going to tell you which ones.  SCO followed through with that line in their court case, which didn't help them at all when it came around to discovery.  They expected IBM to do the technical analysis that proved the SCO case.  It doesn't work that way in the courts.  Now SCO is slowly fading away like a Cheshire cat, except there is no smile left behind.

Microsoft threw some money behind SCO's efforts as a way of competing with open source.  Well, it's not really competing as much as throwing legal roadblocks against your broader competitors.  Microsoft having wads of cash probably thought it was an acceptable cost of doing some kind of business.  But now they seem to be doing the same thing as SCO.  They identify a specific number of patents, 235, and refuse to disclose them for fear that alleged infringers will work around them, or worse, challenge their validity.  The company would like to use this position of scaring companies into licensing agreements. 

Most analysts agree that Microsoft is going to have to be more specific about violations.  And if need be, it should go into court to defend its patents.  Other companies were not shy about this.  Just ask Alcatel when it sued Microsoft over MP3 technology, or the University of California over browser technology.  The Supreme Court recently ruled that lower federal courts should not be rigid in determining whether obviousness affects the validity of a patent.  This can't help Microsoft's position, which is another reason it may be holding back on identifying its property.  Perhaps Microsoft is counting on the fact that open source software is produced mostly by individuals rather than deep pocket corporations.  SCO was undoubtedly motivated by IBM's deep pool of cash for potential damages in its case.  It had to calculate, though, that the same cash could pay for a mountain of lawyers to defend against it.  Fear of a Microsoft patent action is not going to wipe away the open source movement because of the diffuse nature of the code sources.  Microsoft does not scare them.  If Microsoft has valid claims, then it should put them to the test other than making vague threats.