04.16.09

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Microsoft Tells Antitrust Regulators to Sod Off For Another Couple of Weeks

Posted in Antitrust, Europe, GNU/Linux, Microsoft, Patents, Petitions at 6:40 pm by Dr. Roy Schestowitz

Assassins and mercenaries

Summary: Microsoft delays EU response even further while ECIS lays charges against Microsoft

Yesterday we wrote about ECIS's strike against Microsoft and today it turns out that Microsoft keeps procrastinating while its existing products remain anti-competitive by design.

EU antitrust regulators have granted Microsoft yet another extension to respond to charges that the software giant abused its dominant market position by bundling Internet Explorer with Windows.

A European Commission spokeswoman confirmed to The Register this morning that Microsoft has been given a one-week extension. The company now has until 28 April to respond.

Someone has sent us a new document about Microsoft’s crimes. Yes, found within the PDF in a recent complaint is one link to this other EU document [PDF]. It is reminiscent of the Comes petition, but it’s more recent and a lot shorter. It is titled “Microsoft: A History of Anticompetitive Behavior and Consumer Harm” and it comes from ECIS. It happens to speak very concisely about Microsoft’s version of “reasonable and non-discriminatory” (really meaning “predatory and anti-competitive”).

To use an excerpt that contains references to GNU/Linux in particular, here is a new message from HPT in USENET (quoted text is unifont):

Table of contents of this document is a further indictment against the monopoly regarding its anti-competitive practises against competition.

Microsoft

A History of Anticompetitive Behavior and Consumer Harm

March 31, 2009


TABLE OF CONTENTS
I. INTRODUCTION .............................................1
II. MICROSOFT’S HISTORY OF ANTICOMPETITIVE CONDUCT ..........3
A. Microsoft’s Campaign To Destroy DR-DOS ...................3
B. Microsoft’s Anticompetitive Per Processor License Fees ...5
C. Microsoft’s Retaliation And Price Discrimination Against IBM
.............................................................6
D. Microsoft’s Organized Collective Boycott Against Intel ...7
E. Microsoft’s Elimination Of Word Perfect ..................7
F. Microsoft’s Deceptive WISE Software Program ..............9
G. Microsoft’s Elimination Of Netscape .....................10
H. Microsoft’s Attempts To Extinguish Java .................14
I. Microsoft’s Elimination Of Rival Media Players ..........16
J. Microsoft’s Campaign Against Rival Server Operating Systems
............................................................18
III. MICROSOFT CONTINUES TO ENGAGE IN ANTICOMPETITIVE CONDUCT
............................................................19
A. Microsoft’s Failure To Comply With The Final Judgment ...20
B. Microsoft’s Campaign of Patent FUD against Linux and Open
Source Software.............................................23
C. Microsoft’s Ongoing Misconduct Has Sparked Further European
Commission Investigations ..................................23
IV. MICROSOFT’S FALSE PROMISES OF INTEROPERABILITY .........24
V. MICROSOFT’S MONOPOLIES HAVE HARMED CONSUMERS ............25
A. Microsoft’s Operating System Monopoly Has Harmed Consumers
............................................................25
B. Microsoft’s Office Monopoly Has Harmed Consumers ........26
C. Microsoft’s Web Browser Monopoly Has Harmed Consumers ...28
VI. CONCLUSION .............................................31

Section III.B discusses FUD against Linux:


B. Microsoft’s Campaign of Patent FUD against Linux and Open
Source Software

    “This is not a case of some accidental, unknowing
infringement. There is an overwhelming number of patents being
infringed.”

    — Microsoft General Counsel and Intellectual Property and
Licensing Vice President Horacio Gutierrez [128]


Here is an indicting observation about the anti-competitive practises through unsubstantiated patent violations in Linux:


The open source Linux operating system is the principal rival to
Microsoft Windows. Linux has been taken up by both corporate
customers and, increasingly, by private individuals for home use
(e.g., with netbooks). In a recent interview with CNET, Steve
Ballmer identified Linux as one of the top two competitive
threats to Microsoft in the enterprise segment. [129]

Consistent with its behavior in response to other competitive
threats, Microsoft has used unfair and anti-competitive tactics
to try and slow the uptake of Linux. In particular, Microsoft
has made and continues to make broad, unsubstantiated claims that
software developers distributing Linux or other open source
software, as well as their customers, are infringing
Microsoft’s patents. [130] However, although Microsoft has
claimed that as many as 235 patents may have been infringed
[131], it has consistently failed to identify which patents are
at issue.


It warns of possible future legal action by Microsoft, as a part of its FUD campaign against Linux and Open Source to kill Linux, requirement for additional licensing for “immunity”.  According to this next paragraph, licensing fees have a certain ring of action for protection similar to action by organised crime:


Microsoft’s tactic is to spread fear, uncertainty and doubt
(“FUD”) as to whether developers and users of open source
software may be the target of future patent infringement
suits, and thereby chill consumer enthusiasm and demand for Linux
and open source solutions.

Indeed, Microsoft’s unwarranted threats have brought such
pressure to bear on Linux users that some have felt compelled to
enter into royalty-bearing patent licenses with Microsoft. [132]
Microsoft’s campaign of FUD effectively works to impose a “tax”
on the use of the most viable alternative software to Windows:
faced with an intimidating and powerful potential litigant known
for its hardball tactics, Linux users are driven to pay the
licensing fee despite the speculative nature of the IP claims.
Microsoft’s bullying tactics therefore raise the overall cost
and slow down market penetration by innovative technologies
intended to compete with Microsoft’s monopoly products.

Interesting is the comment about the US Law in regard to software patentability.


Moreover, there is a strong likelihood that Microsoft’s patent
FUD campaign may be unfounded in law. Recent U.S. jurisprudence
clarifies that the scope for patenting business methods, which
lie at the heart of many software patents, is much narrower than
was previously thought to be the case. [133] In addition, one of
the thresholds for patentability – that an invention is not
obvious to a person skilled in the art – has recently become
harder to meet. [134] As such, many of the patents held by
Microsoft are likely to be of questionable validity today.


According to this next paragraph, patents are a methodology to deter competition.


Furthermore, given the myriad of software patents in existence,
consumers may often be unable to determine with certainty whether
their use or distribution of certain software products actually
infringes another company’s IP rights. Therefore, contrary to the
broad and categorical statements of Mr. Gutierrez as to the
intentional nature of any alleged patent infringements, it is
widely recognized in the industry that, regardless of whether
proprietary or open source software is used, there is a high
likelihood that patent infringements will have been committed
inadvertently. Microsoft has sought to exploit the current
absence of clarity in patent law in order to deter consumers from
taking up offerings competing with Microsoft’s own products.


Below mentions Microsoft suing TomTom regarding Microsoft’s questionable patents.


In an apparent escalation of its patent FUD strategy, Microsoft
sued the navigational system vendor, TomTom, for patent
infringement at the end of February 2009. Three patent claims
related to Linux are included in the lawsuit. [135] At least two
of them are related to highly questionable patents on long file
name support in Windows, which have been partially invalidated by
an EC patent court on the grounds that Microsoft’s patent claims
were “not based on inventive activity”. [136] While Microsoft has
publicly claimed that its action is not directed against Linux or
open source, and the case was settled in March 2009 pursuant to a
mostly confidential agreement, this represents an aggressive
development of Microsoft’s use of spurious or highly questionable
patent claims to intimidate and eliminate competition from Linux
in order to maintain or strengthen its dominant position in the
OS market.




The full document is a compelling, fascinating read.

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