Niall Kennedy, whose Weblog focuses on "blogs, search, RSS, Atom, business news, and general geekery" recently spent an hour with Bill Gates, along with 13 other "web influentials." Each got to ask a question, so his was, "Why is Microsoft recently choosing to go after supposed patent violations with various operating system companies?" (Actually, he snuck in another one, but let's simplify here.)

Kennedy summarized the resulting dialogue as follows:

Last month Microsoft CEO claimed Linux uses Microsoft "patented intellectual property" and Microsoft shareholders deserve an "appropriate economic return for our patented innovation." The statement seemed like an attempt to create fear and uncertainty in the Linux market, so I asked Gates about the new interest in patent swaps with open source operating systems. Gates claimed patent cross-licensing is common practice in the software industry, protecting companies who indemnify their users from software risks. [The full exchange is available on the blog.]

As I noted in a recent piece in TCS Daily, Microsoft has no serious thought of destroying Linux, which has become, at core, a form of Unix on which the industry has standardized. As for other Free and Open Source Software (FOSS) programs, experience has shown that there is no serious business model. A FOSS program can flourish if it is subsidized, a la Linux, but a general production model based on community barn-raising is not going to replace paid carpenters.

On the other hand, part of the FOSS movement -- the Free Software Foundation and the Copyleft -- want to destroy Microsoft because they oppose IP in general and software IP in particular. Microsoft does have to worry about defending against this religio/political movement, and one thing it cannot do is let the true believers integrate Microsoft IP into open source offerings, and wind up taking it by prescription, akin to the way real estate can acquired by adverse possession.

Complicating this concern is the jumbled state of affairs regarding tech patents. Most tech company lawyers admit that the patent world has become confused, and that it is virtually impossible for companies to be sure that they are not infringing. Patent claims are too vague, the legal system too quixotic, the search mechanisms too imperfect, and the costs too high. So to a certain degree everyone in the tech world is winging it. They gamble that if a patent is really important they will know about it, and in the meantime people do not sweat the small stuff.

Does Linux have Microsoft IP? Probably. Does Windows have other people's IP? The MS folk bristle at the thought, because they have elaborate safeguards against code copying, but patents can be violated without any copying at all, so the answer is, again, "probably." Are the violations serious? Who knows?

[ADDENDUM (14:48): The above para produced a quick note from MS pointing out that it does indeed use lots of other people's IP in Windows -- and punctiliously pays millions of dollars a year for the privilege. This is true; my point referred to the vagaries of the patent system, and the difficulties that any company, however careful, has in being completely certain. It was meant as sympathy, not insult.]

The live-let-live approach is codified by the agreements that Gates referred to in answering Kennedy -- tech companies cross-license their IP portfolios just to be on the safe side. They have also set up numerous systems for standard-setting and equitable licensing terms that allow everyone to plunge ahead. And they have a gentlepersons' agreement to try to avoid the lawyers. Microsoft, for example, has never filed a suit for patent infringement. It always negotiates claims.

But all of these smoothing mechanisms are based on property rights. This means that the FSF wing of the FOSS movement, which believes in property rights only to the degree that these can be used to undermine property rights, does not fit well into any such system. The corporate supporters of the FOSS movement, on the other hand, can fit into it with no trouble. They simply make sure that any donations of patents to general use are contingent upon the user cross-licensing its own patents.

So Microsoft is, in essence, moving ahead to make deals with the corporate part of the FOSS movement to set up a system of interoperability and even harmony between open source and proprietary software. It is actually trying to reduce the uncertainty and doubt vis-à-vis the corporate players, not increase it.

And it is not attacking this religio/political wing, particularly; it is simply ignoring it as increasingly irrelevant.

posted by James DeLong @ 2:10 PM | Patents, Software

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