Microsoft: No plans to sue over Linux patents

By Tom Espiner
Posted on ZDNet News: May 22, 2007 6:24:00 PM

In an official statement emailed to ZDNet UK, Microsoft confirmed that it would not litigate for now.

"If we wanted to go down that road we could have done that three years ago," said a Microsoft spokesperson. "Rather than litigate, Microsoft has spent the last three years building an intellectual property bridge that works for all parties--including open source--and the customer response has been tremendously positive. Our focus is on continuing to build bridges."

The infringement allegations, made by Microsoft in a Fortune magazine article, were that free and open-source software violated more than 230 of its patents.

In the Fortune interview, Microsoft counsel Brad Smith alleged that the Linux kernel violated 42 Microsoft patents, while its user interface and other design elements infringed on a further 65. OpenOffice.org was accused of infringing 45 patents, along with 83 more in other free and open-source programs, according to Fortune.

Microsoft has so far refused to specify which patents are allegedly being infringed by open-source vendors, leading some experts to assert that its threats are empty.

According to John McCreesh, OpenOffice.org marketing project lead, the open-source world is convinced that Microsoft would not substantiate its allegations. "[Patent litigation] is not an issue, but the Microsoft statements turn a non-issue into an issue in the minds of some corporate buyers," said McCreesh.

McCreesh added that while Microsoft may not have plans to sue, it could be using the threat of litigation to try to encourage corporate customers to move to those open-source product vendors with whom it had signed licensing agreements, such as Novell.

"Microsoft has spent time and money accumulating patents. Maybe it has started using that armory to move corporate customers to open-source software that Microsoft approves of," McCreesh told ZDNet UK. "The patent covenant with Novell covers OpenOffice.org, and guarantees corporate customers will not be pursued by Microsoft."

McCreesh said that he suspected Microsoft was also trying to encourage more open-source vendors to enter into a commercial agreement such as the one with Novell.

Nick McGrath, Microsoft's UK director of platform strategy, told ZDNet UK on Thursday that some customers were worried about the possibility of patent litigation. "We conducted research into the best way to give customers peace of mind," said McGrath. "For patent violation we give unlimited indemnification to customers [using Novell]."

Senior analysts said that while the threat of patent litigation might have caused a furor in the open-source community, actual litigation could cause damage to Microsoft similar to the damage suffered by SCO. "I hope it doesn't turn into another SCO," said Jon Collins, service director of Freeform Dynamics. "Microsoft is trying to play nice with the open-source community, but it has to do the Republican stance for its shareholders. There's a massive tension between the two positions."

"The danger is that it makes its stance too strong. SCO came away with egg on its face and damaged share price. The danger is Microsoft might respond to a situation to try to make an example, and that action could damage the brand," Collins added.