Monday, July 6, 2009

Change in Strategy

Over the past couple of days I came up with a list of some 40 Microsoft patents with corresponding pieces of code in open source projects that ship as part of standard Linux distributions. Readers of the original two posts will remember the first two patents from my queue.

My goal was to release one a day, and with some six drafts written, I had material for the first week ready to go.

Given the feedback I received about the goals of this blog and today's announcement from Microsoft the project to identify patents in Linux distributions does not seem very useful anymore.

The announcement confirms the premise that I was trying to prove, that Linux infringes patents and that it was in nobody's interest to pursue lawsuits against open source software.

The blog will change direction and instead of exposing patents that Linux infringes, we will explore the subject of patents in the industry. My other blog post on "The Value of Patents" needs a little bit of work and some updates before it goes live, and will need to be updated to reflect these new developments.

For the time being, I have removed the content of the old blog posts from blogger and destroyed my notes.

Saturday, July 4, 2009

Introduction post: A Patent a Day Project.

Over the past few months a raging debate has sparked about the dangers of using Mono for developing open source software. Richard Stallman, founder of the free software movement has weighted in by asking people to refrain from using C#.

The debate between the pro-Mono camp and the anti-Mono camp has been warming up. A summary of the fight so far was published in Datamation by Bruce Byfield. The debate has all the elements of good nerd drama. Fueled by Roy Schestowits, the relentless editor of the Boycott Novell site who specializes in controversy, propaganda and distortion and Sam Varghese a blogger at ITWire who oddly enough also specializes in controversy, propaganda and distortion the debate has been raging on for months.

The anti-Mono side claims there are some patents that Mono infringes that one day Microsoft will us to sink all of Linux. The pro-Mono side claims that Mono is not the worst patent infringer in Linux, and that other technologies in Linux are just as bad.

Despite the claims being made, there has been very little substance published. Both sides are appealing to unknown patents to make their case. The echo chamber merely echoes these same concerns over and over again with no actual patents to point to.

The software patent industry is in bad shape. Companies get patents for the simplest of ideas and then go to court to prevent others from using the idea (One click shopping from Amazon for example) or to extract royalties from them (By 2007, IBM had monetized their patent business at the tune of 1 billion dollars per year of pure profit).

Microsoft on the other hand has for years been claiming that Linux infringes on their patents, but they have not said which patents. By doing this, it has sent the Linux community on a paranoid spiral that has sent his members into sad histrionic performances. The more paranoid, the more attention you get, just like a tabloid or Glenn Beck on FOX News.

The recent case where Microsoft sued Tom Tom for patent infringement included two patents on VFAT a technology that Tom Tom infringed on because they were used the Linux kernel.

Although Tom Tom tried to extract money from Microsoft first, this important bit of information was lost in the noise. Instead, the myth that Microsoft sued Tom Tom to take them out was born.

In general, developers are asked not to look at patents, to not read about them and to ignore them for a simple financial reason. If it can be proved in court that a company knew about the patent infringement then the damages are automatically tripled. So if a judge considered that the owner of the patent lost a million dollars worth of revenue due to the patent infringement, but the infringer knew about this, then the damages and liabilities jump to three million dollars.

That is the indicator that Tom Tom had approached Microsoft first about Microsoft infringing on Tom Tom's patents:

In a suit filed earlier this week, TomTom alleges that Microsoft infringes on four patents in Microsoft Streets and Trips. The product is mapping software that runs on computers and can be used with a small GPS receiver that connects to a laptop. TomTom is asking for triple damages for willful infringement, since it says it had notified Microsoft about its alleged infringement.

Microsoft said it was reviewing TomTom's filing and that it remains committed to a licensing solution and has been for more than a year.

Microsoft has claimed that Linux infringes on a number of its patents. So far all we have heard is rhethoric on both camps. Microsoft has not published the patent numbers that Linux infringes, and the open source community has been divided between those that refuse to license patents from Microsoft (Red Hat being the leader in the space) and those that have (Novell, and a handful of other smaller companies).

According to the book "Burning the Ships" by Microsoft's Marshal Phelps, the company originally approached Red Hat for licensing their patent portfolio, but Red Hat refused. Whether Microsoft shared a list of patents with them or not is not know.

The Linux developers did not wait and produced a fix that avoids Microsoft's patents on the Linux kernel in a couple of months.

But beyond VFAT there is little known about which patents Linux infringes.

The goal of this blog is to shed light into which patents Linux infringes, which technologies to avoid and hopefully to help raise awareness of the patent problem and try to create a patent free Linux system.

We will be posting a Microsoft patent per day that Linux infringes. Hopefully we will get this blog publicized in enough places to ensure that Linux developers swiftly remove the infringing code from their distributions. Out of this project a stronger Linux will emerge, one that is not liable to patent infringements.