However, Fortune senior editor Roger Parloff and I are diametrically opposed when it comes to our conclusions. Mr. Parloff refers to Microsoft's claim that FOSS software infringes on 235 Microsoft patents as "a breathtaking number."
My reaction to this number is: 235? That's it? Microsoft examined their patent portfolio and could only find 235 patents that might be infringed upon by the entire corpus of FOSS?!
That's embarassing.
Microsoft has dominated desktop computing for over 15 years. I'd expect them to have a lot more than 235 patents to trot out considering they are claiming infringement in the Operating System and GUIs (Windows), Office Productivity (Office), and E-mail (Outlook) software. I expect they've kept some in reserve as backup ammunition for the ones that get invalidated or circumvented, but it doesn't seem to even be the right order of magnitude for the industry to be concerned.
The fact of the matter is that Microsoft has not been a leading innovator in computing. They aren't even close to holding the good cards in this game. IBM is -- and IBM likes FOSS. IBM was granted the most US patents in 2006 with a total of 3,651. They have been granted the most US patents on an annual basis for 14 years in a row. Microsoft did not make the top ten last year, though HP, Hitachi, Toshiba, and Intel did. Each of these companies makes significant use of FOSS in products or solutions. Microsoft appears to hold between 5000 and 7000 patents total.
Microsoft's announcement is starting to look like a good bit of Fear, Uncertainty, and Doubt (FUD). Ironically, FUD was invented, though not patented, by IBM back when they were trying to crush Amdahl.
The real bad news [for Microsoft and its shareholders] in this story is that it appears Microsoft plans to profit from their patents by:
Smith [Microsoft's general counsel] was not to be deterred. Since the GPL covered only distributors of Linux, nothing stopped Smith from seeking royalties directly from end users - many of which are Fortune 500 companies. He would have to proceed carefully, however, because most of those users were also major Microsoft customers.
Microsoft is going to seek royalties from their own customers when those customers use certain free or open source software. And what will Microsoft do when a customer doesn't want to pay up?
- Will Microsoft not sell them Microsoft products? Is this an anti-trust violation due to Microsoft's monopoly status?
- Will Microsoft sue that customer to enjoin them from using the "infringing" software?
- Will they just move on to the next customer / sucker?
I think this "strategy" indicates that Microsoft's shareholder value curve just hit an inflection point and is now concave down after being flat for the last 7 years. If Microsoft continues this course, the best they can hope for is a repeat of SCO's performance, which is not ending well for SCO. Note that SCO is widely considered as a proxy for Microsoft in the FOSS community. The worst thing that could happen for Microsoft and everyone else is for "patent Armageddon" to be unleashed. Microsoft's Smith knows this is a possibility:
"The only real solution that [the free-software] folks have to offer," Smith says, "is that they first burn down the bridge, and then they burn down the patent system. That to me is not a goal that's likely to be achieved, and not a goal that should be achieved."
Not surprisingly, I disagree with Smith. Microsoft will lose quickly, and authoritatively as patent arsenals 10-100x the size of Microsoft's arsenal are unleashed upon it. The downside for the existing leaders of the software industry is that patent Armageddon would inject massive instability as the concept of software patents gets sorted out. Long-term I suspect this might be a good thing as the USPTO is granting many software patents for derivative, obvious, and non-novel work, but it's sure to cause massive blood-letting in the short-term.
Now, I've got to get back to coding my FOSS project. :)
