Open-source 'violating patents'

2007-05-16 13:38

Seattle - Microsoft Corp cranked up the rhetoric against open-source software with new details about the ways it says free programs violate its patents.

While the world's largest software company said it prefers licensing deals to legal action, it also indicated it won't ignore what it sees as infringement.

"There is no reason why any segment of the industry needs to be exempt from intellectual property rules," said Horacio Gutierrez, a Microsoft vice president for intellectual property and licensing.

At the most basic level, open-source software is built by a community of companies and independent programmers. It's distributed, often without charge, to businesses and consumers and programmers to modify, build on, and distribute again - also for free.

While proprietary software companies like Microsoft make money by selling licences for programs, open-source companies usually make money selling support services.

On Monday, Microsoft said open-source programs step on 235 Microsoft patents. The core of the free Linux operating system violates 42 patents. Open-source programs' graphical user interfaces, or the way menus and windows look on the screen, breach 65. E-mail programs step on 15, and other programs violate 68 patents, the company said. The patent figures were first reported by Fortune magazine.

'A great deal of concern'

Microsoft also said Open Office, an open-source program supported in part by Sun Microsystems Inc, infringes on 45 patents. Sun declined to comment on the allegation.

Microsoft's Windows is the dominant software on servers and desktop PCs, but Microsoft views the free or low-cost Linux operating system alternatives "with a great deal of concern", said Al Gillen, an analyst at the technology research group IDC.

"It's one of the few operating systems that represents a viable threat that Microsoft has a great deal of difficulty containing," Gillen said. Because open-source developers share their code, the challenge to Microsoft's products isn't limited to one company.

Instead, Microsoft has struck a number of patent-licensing deals with companies that use open-source code, most notably Novell Inc last November. In one aspect of the deal, Microsoft agreed to sell Novell's flavour of Linux, called Suse. It also agreed not to sue the customers who bought it, even though it claims the open-source software infringes on its patents.

"Microsoft could have chosen to litigate many years ago, but we have decided not to do that," Gutierrez said. Instead, in the interest of making sure programs that include open-source technology work with Microsoft products and vice versa, the company will continue to pursue similar deals.

Much of the open-source community was unhappy with the Novell deal, which it saw as a workaround to a widely used open-source licence called the GNU General Public Licence.

More broadly, the free software movement saw the deal as an attack on one of its core tenets. Under the public licence, once open-source code is incorporated into another company's technology, the new product must also be freely available. But the deal also required Novell to pay millions in "royalties" - an indirect admission that Suse Linux contained Microsoft intellectual property and can't be given away for free.

Divide and conquer

"Now it becomes possible to divide and conquer our community," said Eben Moglen, an attorney for the Free Software Foundation, the entity behind the GNU licence. By making a pact with Novell, Microsoft also implied that anyone who downloaded or bought Linux from another vendor was doing so illegally.

The next version of the GNU licence, currently in draft form, aims to stop similar deals. Moglen said the draft states that if a company like Microsoft distributes open-source programs protected by the GNU licence, it forfeits any related patent claims.

Open-source proponents are frustrated by Microsoft's repeated allusions to patent violations because "they never say what patents being violated, never make any assertions, never put the evidence out there," said Larry Augustin, a technology start-up investor who launched SourceForge.net, a prominent open-source development site, in 1999.

But Augustin also acknowledged that it's not in Microsoft's interest to do so: Open-source programmers could rewrite their code to avoid infringing on specific patents, or the courts could find that Microsoft's patent isn't valid.

An ongoing open-source patent case could indicate that it isn't easy for a software maker to prove infringement. The SCO Group Inc, a Utah-based company, sued IBM in 2003 for donating its proprietary Unix code to open-source developers.

Late last year, a federal judge upheld a decision to dismiss about half of the claims against IBM, agreeing that SCO had failed to identify exactly which lines of code in Linux infringed on its patents.

Legal action by Microsoft could also kick off a massive patent war. An organisation called the Open Innovation Network, funded by IBM, Red Hat Inc and others, has amassed a vast number of software patents. If there is a Microsoft lawsuit against open source companies or customers, the OIN would retaliate in kind.

"We believe it's highly likely that Microsoft would infringe some of our patents," said Jerry Rosenthal, OIN's chief executive.

- AP