I get the feeling since it hasn't been slathered all over the blue or Digg that nobody knows what to think while silently wishing like hell it gets tossed into the frivolous lawsuit pile.

It is another sign Microsoft is paranoid about its future. You have one part of the company working to make sure Microsoft products work well with Linix and you have another part of the company threatening to sue Linux and Open Source into the stone age.

I do think the claims to these patents are weak, but MS unlimited resources it could use to keep it tied up in court forever.

Wouldn't it be great if a legal war erupted in which individual users found themselves sued by all sides as collateral bullying to the neverending lawsuits between the corporations and other entities involved, until using a computer became so dangerous and potentially expensive that the computer market collapsed, leaving only a few very rich people using computers at all, but no huge infrastructure to develop applications and new hardware, and home and office computers would wither on the vine? Then everybody would leave their dens and gambol in the fields, and office workers would find more time to craft paper airplanes and stick pencils in the ceiling.

It's the nature of the patent based IP rewards system that is responsible for this kind of thing. Microsoft, as the holder of patents, has a responsibility to try to defend them, and is set back considerably in future defense and licensing actions if it doesn't, and that failure to defend the patents comes to light. Patent and copyright law, in my opinion, needs substantial reworking, if the whole of civilization is to continue to work reasonably, on an ever growing tower of giants' shoulders, as we all, really, would like.

The idea of patent is strained considerably, in my view, when applied to software or business process. And yet, with no other mechanism at ready hand to protect investor interests, patent is the de facto means of establishing IP protection. Perhaps the guarantees provided under patent law could be permitted to stand, if non-commercial statutory license terms were developed, which could pass through reasonable licensing fees to end users. Thus, makers of Open Source would have reasonable indemnity protections, and an interest in acknowledging prior art, while end users could be sure of reasonable fees for use of the IP, and patent holders could see revenue, rather than legal expenses. Something like that would require enabling legislation, but it would sure seem to be a win all around, compared to the present mess.

And that's probably why it will never come to pass, governments being the agencies of lawyers for full employment.

I can't help but sit and think, wow, this could impact personal computing for decades to come... and most of the population won't even understand what it is about.

When MS DOS showed up 10 years late to the party using back slashes instead of forward slashes to separate directory names and some similar (but weaker) commands, I saw it as a riff off of Unix. Now MS asserts that Linux is a riff off of them ... yet the Unix community remains quiet. Seems like MS is trying to collect on their status as the "first post"-er of patents.

I think it's bluster that they hope will scare customers away from using open source software.

* IBM & Novell both hold patents that Microsoft violates (and in IBM's case, they hold something like 4 or 5 times the number of patents Microsoft has). IBM & Novell are both deeply committed to Linux, have huge amounts of cash reserves, and large teams of lawyers that are experienced with technology issues. If Microsoft decides to attack their core software business, they'll most likely end up in an expensive series of court battles that may end up getting their Active Directory software, one of the more obviously patent violating pieces of MS software, declared to be infringing.

* The chance of any of those 235 patents not having obvious prior art is slim, and given the number of Linux users who have the technology background to find that prior art, Microsoft will just end up pissing money and time away.

Software should not be patentable and it's a damn shame that the US is so pigheaded about it.

It's the nature of the patent based IP rewards system that is responsible for this kind of thing. Microsoft, as the holder of patents, has a responsibility to try to defend them, and is set back considerably in future defense and licensing actions if it doesn't, and that failure to defend the patents comes to light.

I don't think that's true - patents aren't trademarks. You can quietly sit on a patent for 10 years and watch all the big companies violate it, and then sue a small company because they won't fight back. Your patent doesn't lose strength if you don't defend it, and that's why patent trolling is becoming such a profitable business.

I went to a talk by MS's General Counsel just a couple months ago -- he was talking about how great interoperability was. Wish I could've asked him about this!

Hang on.

Users found to be using software that infringes on patents could be held liable

What the hell? Why me, and not the makers of the software?

Because that's how patents in the US legal system works. If you are using a product that infringes on patents, the patent holder can take you to court over it, list the specific patents that the product infringes upon (and it's worth noting that the product must violate every claim in the specific patent to be found to be infringing), regardless of whether or not you actually made the product. This isn't just a software patent issue, either; if you lived in the US and somehow pissed Daimler Chrysler off enough, they could vindictively sue you for owning a Toyota if that Toyota violates one of their patents. But everyone aside from the RIAA and SCO knows that suing potential customers is very bad for business, so it doesn't happen.

This is why every large software vendor talks about "indemnification" - you buy their software, knowing that they all violate patents, since it's impossible not to, and if someone decides you're an easy mark and takes you to court for using Enterprisey Software Application 2.01, the software manufacturer will pay your legal bills.

The patent war that Microsoft is threatening is mutually assured destruction - every large corporation has a nuclear arsenal, and none of them want to fire the first shot. And Microsoft knows that starting that war would mean the end of the software industry in the US, so it isn't likely to happen.

Oh, and the mutually assured destruction thing is why patent troll firms like NTP are horrible - the only thing they own is patents, so they can get away with firing those nuclear weapons and not give their opponent a means of retaliation.

I can't really speak knowledgeably on the patent stuff, but it seems clear that Microsoft has reached that point in the lifespan of huge corporations where one hand doesn't know what the other is doing, and no single person can understand how the whole thing works, and where, just because of scale and inertia and whatnot, it's no longer possible to behave in logically- and internally-consistent ways. Same kinda thing seems to have happened with Sony, NewsCorp, the big car companies, etc. Is there a name for this phemonomen, or perhaps a funny business book on the subject?

"funny business book"

I read that as "book about funny business," not "funny book about business."

That's all; carry on.

I suppose my ideal would be a funny book about funny business, but I'd happily settle for one or the other.

I don't know what the name for it is, but it seems to usually come about when there are too many middle-management layers. Microsoft, I've heard, has something like 10 managers between the lowest software engineers and the executives, and you just can't set a proper direction for a company with that many layers to filter through. All business is funny business.

"...Your patent doesn't lose strength if you don't defend it, and that's why patent trolling is becoming such a profitable business."
posted by cmonkey 15 May | 10:54

IANAL, but I think you're right about that, cmonkey. Still, standing silent on such a scenario is bound to raise issues of fact for prior art and validity claims, by those you do eventually chose to sue. It is a tactic that has some risk, since if the big boys choose to fund the small guy's fight, you, as the patent holder, are going to have to try your facts, and expose your arguments.

It's a crappy system, generally, IMO.

One of these days I am going to have to cut the MS umbilical, despite my unlimited "free" copies of WinXP and Office 2003. Every time I re-install, I get this bad taste in my mouth. It's not really Microsoft's fault, though - they operate within a system that means they have to do these things to ensure that they have protected the investments of their shareholders. Which doesn't help with the bad taste thing, of course, but it helps me to rationalise my continued use of their products.

Still, standing silent on such a scenario is bound to raise issues of fact for prior art and validity claims, by those you do eventually chose to sue. It is a tactic that has some risk, since if the big boys choose to fund the small guy's fight, you, as the patent holder, are going to have to try your facts, and expose your arguments.

Everything I've read and everything I've directly heard from patent lawyers is that sitting on patents doesn't mean a thing to the US court system. If you can go into court and prove that XYZ Corporation is violating patent #123456, claims 1-64, you win and XYZ Corporation needs to stop selling their patent infringing product, regardless of how long you waited and watched others violating the patent. The courts rely on the USPTO to do the dirty work of filtering out patent applications that are obvious or that have existing prior art, as they should, so by the time it reaches a judge, it's purely a matter of whether or not something violates the patent in question. The defense lawyers will certainly raise the prior art and validity issues, but then you're in a situation where you're spending $10K a day to invalidate a stupid patent that shouldn't have been granted in the first place. And, of course, most companies roll over.

It's such a broken system.