The Internets are buzzing in response to Roger Parloff’s lengthy piece in Fortune this week, which chronicles the ongoing saga the Microsoft and Novell patent/interoperability deal.  Personally, I think it’s a pretty balanced piece, but it doesn’t paint Microsoft as a knuckle-dragging, puppy-kicking monopolist focused on the destruction of Free Software, Motherhood and Apple Pie…so, others predictably disagree.

The majority of the discussion at Groklaw and Slashdot is devoted to simply attacking Microsoft’s patents, the patentability of software at all, and the Microsoft business strategy.  It’s a fun little exercise for all of the software patent haters and wannabe lawyers, but here is why it’s just a sideshow:

  • The Fact that Linux Infringes Software Patents is Not News.  Microsoft is just finally confirming what everyone already knew.  Pubpat did an exhaustive study a few years ago that found that 283 patents that potentially read on Linux.  Just a few months ago, Richard Stallman himself was quoting that study and suggesting that the reality is that Linux probably infringes more than that now!
  • KSR Changes Things, But Not That Much. The KSR case was a great win for improving the quality of software patents that are approved by the USPTO.  HOwever, even if we take a worst case scenario and say that 50% of Microsofts cited patents are untenable in the post-KSR world, we’re still talking about 100+ patents.
  • Dont’ misinterpret Microsoft’s Decision Not to Share Patent Numbers Publicly. As Parloff noted in his legal notes blog, Microsoft explained that it does share the patents involved in private conversations with potential licensees (many of whom are deciding to take the licenses).  Why not do the same thing publicly?  Microsoft said that “There are a number of legal reasons why companies don’t do that. No company does that. IBM (IBM) doesn’t do that. HP (HPQ) doesn’t. Fujitsu (FJTSY.PK) doesn’t."

    • The issue no one is discussing is what it all means in the context of GPLv3 and the future of the Free Software and Open Source communities.  As Eben Moglen said in the piece: 

    "As the commercial confrontation between

    [free software] and software-that’s-a-product becomes more fierce, patent law’s going to be the terrain on which a big piece of the war’s going to be fought. Waterloo is here somewhere."

    The FSF wants a patent armageddon.  They want a Waterloo and they’re hoping not be Napoleon in that tired metaphor.  Novell and Microsoft proved there was a way for open source companies to collaborate with proprietary companies and even license software patents for the benefit of consumers.  GPLv3 is designed to end that practice and to make Free Software completely incompatible with the software patents that Stallman loathes so much.

    I’ll provide deeper analysis of the broader meaning in my next post.  For now, however, it is safe to say Jonathan was right and we’re now approaching the Eve of the Bonfire.