Microsoft: Open-Source Violates 235 Patents

Microsoft is using a new technique to combat the threat of open-source to its business: accusing it of using its intellectual property covered in some 235 patents.

The accusation comes from Microsoft chief Steve Ballmer and general counsel Brad Smith, who told Fortune the movement needs to "play by the same rules" that everybody else does and license the technologies it uses.

Linux's kernel is said to infringe on some 42 patents, while its user interface and design violate 65 more. The Sun-backed productivity suite infringes on 45 patents, and some 83 other patented technologies are said to be in other various Linux applications, according to the Redmond company.


Its not clear how Microsoft could press for legal action against those using its intellectual property. However, doing so could put it at risk of having to defend suits against technologies included in Windows, making legal action an alternative the company might want to avoid.

Smith told Fortune that Microsoft had considered donating the technologies to the development community, but decided against it as it wouldn't have been in the best interest of its shareholders. Lawsuits were not an option either, as it was trying to strengthen relationships with other companies.

In the end, it decided to cross-license patents, and has since signed deals with Novell, Toshiba, Siemens and others. However, with free and open-source software, there usually is no centralized body for the patent holders to sign licensing agreements with.

"The real question is not whether there exist substantial patent infringement issues, but what to do about them," Microsoft IP vice president HoraHoracio Guiterrez said.

In discussing the situation, Microsoft Watch's Joe Wilcox said the company does not necessarily need to sue anybody, just create enough "fear, uncertainty, and doubt" about open-source software.

"More importantly, Microsoft could use the tacit threat of a lawsuit as a means of keeping in line customers already committed to swap out Office or Windows for open-source alternatives," Wilcox surmised. "Microsoft might not sue a customer, but one booting Office or Windows is no longer a customer; they're fair game."

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