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Linus Torvalds takes issue with Microsoft's claims of patent infringement

In its most recent bout with Linux and the open-source community, Microsoft claimed that Linux distributions, along with other open-source software, actually infringe on its patents. The Redmond giant claimed that 235 of its patents have been violated by the Linux kernel, Linux graphical user interface and Open Office/other open-source applications. The company went on to say that it believes it has the right to demand royalties from Linux distributions.

Despite Microsoft taking a strong stance on its argument, Linus Torvalds, lead developer of the Linux kernel, failed to blink. Talking to InformationWeek, Torvalds simply said, "It's certainly a lot more likely that Microsoft violates patents than Linux does. If the source code for Windows could be subjected to the same critical review that Linux has been, Microsoft would find itself in violation of patents held by other companies."

Torvalds went on to reason that although "fundamental patents" for basic operating series were already filed in the 1960s, the protection for those patents have been expired for quite some time. He also suggested that Microsoft name the patents that it believes are being violated in order for its claims to actually be tested in court.

"Naming them would make it either clear that Linux isn't infringing at all (which is quite possible, especially if the patents are bad), or would make it possible to avoid infringing by coding around whatever silly thing they claim."

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Closed source code
By jtesoro on 5/16/2007 9:38:50 AM , Rating: 5
That comment is very interesting and has a chance that it actually holds water. Can one make a claim and sue a software company (Microsoft or otherwise) if their source code isn't publicly visible or available?




RE: Closed source code
By jtesoro on 5/16/2007 9:40:52 AM , Rating: 2
Oops, I meant that in the context of the quote "If the source code for Windows could be subjected to the same critical review that Linux has been, Microsoft would find itself in violation of patents held by other companies."


RE: Closed source code
By lukasbradley on 5/16/2007 9:59:44 AM , Rating: 3
Absolutely. If you own the patent, you don't even have to be a producer of code.

One of the reasons intellectual property and software patents have become so cantankerous is the advent of third-party firms (law firms, mostly) purchasing older patents from expiring companies. These third-party firms then pursue damages from other firms who have produced something that is close in functionality to what the patent describes.

Owning a patent, in many ways, allows you to legally claim you own the *ability* to exercise an idea or concept, even if you choose not to do so. If other entities so desire, they can license that ability from you. Otherwise, they are subject to legal ire.


RE: Closed source code
By jtesoro on 5/16/2007 10:19:03 AM , Rating: 2
Interesting. In this case, the patent is in the context of source code, so I assume that it involves a certain way of coding. For example: "using a 'for' loop to search through an array" (let's assume that's patentable). How can one make an assertion that someone violates the patent if you can't see their source code?


RE: Closed source code
By TomZ on 5/16/2007 11:31:37 AM , Rating: 2
I agree, and I think that, as a practical matter, it is practically impossible to write code that doesn't infringe on software patents. You would have to do patent searches for all new code you write - and who does that?


RE: Closed source code
By jtesoro on 5/16/2007 11:54:18 AM , Rating: 2
I think there has to be a way to protect truly novel or unique coding innovations (though how to define "truly novel or unique" will be difficult at best). On the other hand, as time goes on, programmers will likely stumble on the same innovations eventually. This will make it practically impossible to write non-infringing code, as you say.

Given all that, I think Microsoft should back off on these royalty claims they're making. You know, kinda using the elementary school concept of "fair's fair".


RE: Closed source code
By TomZ on 5/16/2007 1:01:14 PM , Rating: 1
I don't know if Microsoft should back off or not. To the extent that Linux contains infringing code and it is responsible for decreased sales for Microsoft and other companies/individuals are profiting from it, there is a chance that such claims would make sense.

But that is a long chain of conditionals that all have to be true, and I think it is more likely that Microsoft is reminding people that Linux is maybe "free" like free speech but not "free" like free of IP ownership problems for its users, especially corporate users.

I'm not advocating strategies that border on FUD, however, we have to remember that companies are making money off of Linux, and they need to be held to the same standards as everyone else. After all, there should be no free ride for companies that make money off of "free" software.


RE: Closed source code
By leexgx on 5/16/2007 9:42:22 PM , Rating: 2
heh i guess that did not go down well with DT users (thay should make the Voting system in here like Digg.com as some users can get some realy low - numbers)

companies that sell linux are norm selling an service for and there is norm None free software that is sold with it that is not Open source


RE: Closed source code
By TomZ on 5/16/2007 10:49:14 PM , Rating: 2
Some people can't handle the truth. Oh well.


RE: Closed source code
By Scrogneugneu on 5/16/2007 8:11:30 PM , Rating: 2
quote:
You would have to do patent searches for all new code you write - and who does that?


Lawyers. Why?


RE: Closed source code
By mars777 on 5/17/2007 12:10:48 AM , Rating: 2
In Europe they just dont.
Software patents on "schemes, rules and methods for performing mental acts" are not allowed.

So you cannot patent a method for "doing something" in code.
You can patent a product only.

And that is fair.

Everything in software if "obvious" to programmers. it's not obvious to morons at the departments for patents.

America has gone wrong with software patents, and even if it would be fair to patent menthal acts in programming it would not be cleaver.

Why?

Because programming has a rate of progress and speed of developing x times faster than other developments.
So if a patent on electronic engeneering lasts 20 years, a patent for software cannot.
You would hinder progress for 20 years!!!

Patent a recursive function call to solve a treeview search and you have just killed 30% of all programming on earth ... (it's just an example, its obvious that this has allready been done in the past and is not patentable)


RE: Closed source code
By theapparition on 5/17/2007 11:31:57 AM , Rating: 2
I think everyone is getting a little off base with the patenting software "code" example. Patenting "FOR" loops and "IF" functions are part of the software compiler that was purchased and is licensed legally for you to create what you want, with any sort of code.

However, from reading a little about Microsoft's claim, it has nothing to do with the code, rather, it is that they don't like how the Linux shells emulate the "look and feel" of Windows. If you remember back in the day when Apple sued Microsoft over Finder. It had nothing to do how it was coded, but how it was similar in "user" operation.

That's the point of Microsoft's current sabre rattling.


RE: Closed source code
By theapparition on 5/17/2007 11:31:57 AM , Rating: 2
I think everyone is getting a little off base with the patenting software "code" example. Patenting "FOR" loops and "IF" functions are part of the software compiler that was purchased and is licensed legally for you to create what you want, with any sort of code.

However, from reading a little about Microsoft's claim, it has nothing to do with the code, rather, it is that they don't like how the Linux shells emulate the "look and feel" of Windows. If you remember back in the day when Apple sued Microsoft over Finder. It had nothing to do how it was coded, but how it was similar in "user" operation.

That's the point of Microsoft's current sabre rattling.


RE: Closed source code
By Dactyl on 5/16/2007 2:16:55 PM , Rating: 2
How can one make an assertion that someone violates the patent if you can't see their source code?

If you suspect they are violating your code, first you notify them of your patent and demand that they say they are not violating it. (If they agree they are infringing, then you can settle with them.) If they won't settle, you can sue.

If Sun sues MSFT, Sun doesn't get to see MSFT's source code, but Sun's lawyers do. And when I say "Sun's lawyers," I'm talking about a team of lawyers employed by a law firm that Sun has hired to represent it. Sun's in-house lawyers (lawyers directly employed by Sun) can't see MSFT's source code either.

So the lawyers Sun has hired for this case, and their experts, get to see MSFT's source code. Everybody has to swear up and down that they will keep it secret, with serious consequences if they leak it.


RE: Closed source code
By carage on 5/17/2007 5:14:43 AM , Rating: 2
And the lawyers probably have to hire another team of programmers, I doubt there are many lawyers capable of analyzing source codes by themselves.


RE: Closed source code
By KasjaajaK on 5/16/2007 1:50:12 PM , Rating: 2
Could Microsoft potentially trying to muddy the waters in anticipation of future patent infringement case?

It seems highly unlikely that the immense MS canon doesn't infringe on the GNU license in at least a hundred ways. It also seems to Microsoft's advantage to get in the first shot, while establishing in court the pragmatic fact that it's long been impossible to code without doing something that's been done before.

Such a move could help to insulate against a future case of deliberate plagiarism by providing plausible deniability.


RE: Closed source code
By borowki on 5/16/2007 4:28:05 PM , Rating: 2
quote:
It seems highly unlikely that the immense MS canon doesn't infringe on the GNU license in at least a hundred ways.


GPL is based on copyright. Unless a programmer at Microsoft actually copied and pasted code from a GPL'ed software, there would be no violation.


RE: Closed source code
By TomZ on 5/16/2007 5:15:33 PM , Rating: 2
Just curious - has any court ever dealt with whether downloading and making use of GPL-licensed open source actually legally binds the user to that license?

What I mean is, I remember a while back (years ago) it being stated that shrink-wrap EULAs were basically untested in courts as to whether they were legally binding. In other words, just because I tore open and installed the software may or may not mean that I am legally bound to the agreement.

Just to be clear, I'm not talking about right/wrong; I'm just questioning the legal effectiveness of the license.


RE: Closed source code
By borowki on 5/17/2007 5:17:57 AM , Rating: 2
As far as I know the GPL hasn't been tested in court. There is really no practical reasons to challenge it, since showing the GPL to be unenforceable would not strip a software licensed of its copyright protection. This point is explained in the text of the GPL itself:

quote:
You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works.


RE: Closed source code
By NoSoftwarePatents on 5/17/2007 1:59:43 PM , Rating: 2
Actually it *has* been tested in court in some ways. Look up an anti-GPL character named Daniel Wallace. In short, the lawsuit against the GPL did not go well for him.

Here is a link to get you started...

http://www.fsf.org/news/wallace-vs-fsf

This doesn't mean every aspect of the GPL is highly enforceable, but it's not worthless either.