Microsoft: Open Source Violates 235 Patents

Microsoft's general counsel says that open source software violates 235 Microsoft patents - and implies open source users will need to pay up.

In an interview with Fortune magazine (available online via the CNN Web site) Microsoft’s VP of intellectual property Horacio Gutierrez and Microsoft’s general counsel Brad Smith make the bold assertion that free and open source software (FOSS)—including the Linux operating system—violate some 245 Microsoft patents, and the company believes open source distributors and end users should pay royalties on the allegedly-infringed technology. In fact, Microsoft even implies that one reason for the quality of open source software is that it steals Microsoft technology.

Although Microsoft’s assertions are not new, the interview marks the first time the Redmond software giant has offered any details behind its claims. Smith categorized some of the the alleged patent violations, claiming the Linux kernel infringes on 42 patents while elements of Linux user interfaces violate another 65 patents. Smith also asserted the Open Office productivity suite violates 45 patents, open source email applications infringe on another 15, and another 65 Microsoft patents are allegedly infringed by other open source applications.

"This is not a case of some accidental, unknowing infringement," Gutierrez says in the article. "There is an overwhelming number of patents being infringed."

Microsoft appears to be embarking on a strategy aimed at getting the FOSS community to pay royalties on allegedly-infringed patents, while simultaneously besmirching the open source movement and attempting to lay some claim to quality products which have emerged from the effort. Microsoft has also been laying fear-spreading groundwork in its deals with other companies: Microsoft’s recent deal with Novell to improve interoperability with SUSE Linux includes provisions which indemnify Novell from any patent infringement claims regarding Linux; Microsoft recently made a similar agreement with Samsung in a cross-licensing agreement. Other industry players who participate in the open source movement have to be wondering if they will face liability and royalty claims from Microsoft on patent infringement allegations—and with 235 claimed violations, some organizations have got to be worrying that some of the allegations will stick.

For its part, the open source movement is unimpressed with Microsoft’s patent infringement claims. The open software movement has historically claimed that software is fundamentally a mathematically algorithm which cannot be patented, Furthermore, last month the Supreme Court handed down a unanimous decision which found patents have been granted to "obvious" applications over the last 20 years, and that many of those applications are likely invalid. Industry watchers have pointed to the software industry as the likely home of many patents which could now be more vulnerable to court challenges.