SHORTLY after the OIN had intercepted Microsoft's attempt to float anti-GNU/Linux patents [1, 2, 3, 4, 5], many responses were posted. Among them there is one from Eben Moglen. who wrote that "Our community—including all developers, distributors and users—owes Keith Bergelt of OIN, and the companies on his board of directors, a round of serious thanks for interrupting this arms trade, and calling attention to a bad business practice." He also wrote:

An announcement by the Open Invention Network has disclosed publicly for the first time another, previously-secret front in our community’s efforts to protect itself against anti-competitive aggression by Microsoft. OIN’s transaction with Allied Security Trust to buy patents, supposedly reading on free software, offered to the troll market by Microsoft prevented what could have been a very unpleasant experience for the whole free software ecosystem.

Selling patents to organizations that have no purpose except to bring litigation—entities which do not themselves make anything or conduct any research, which do not indeed contribute in any tangible or intangible way to the progress of civilization—is not standard commercial practice. What Microsoft is really doing here is sowing disruption, creating fear, uncertainty and doubt at the expense of encouraging the very sort of misbehavior in the patent system that hurts everyone in the industry, including them.

This week, we saw some of the software patent skirmishes that are driving and validating this thinking. There was first news that the Open Invention Network, the consortium dedicated to legal and IP defense of Linux, had bought some software patents that related to Linux, which admittedly is not hard to do these days. It turned out the 22 Linux-focused patents were purchased from Allied Security Trust, which had actually purchased them from none other than Microsoft. This might not have meant a whole lot, with OIN proclaiming a victory and Microsoft stating simply that the patents did not hold much value to them. However, the plot thickened as we heard from FOSS defender Eben Moglen, from Linux Foundation executive director Jim Zemlin and from vendor Red Hat, that Microsoft may have been shopping the patents around to would-be patent trolls who would do the dirty work of FUD on their own.

Microsoft doesn't control it. What it used to be able to do in the dark now falls out of its noxious bag of tricks into the Internet's bright light, stage front and center. And there stands Microsoft in the spotlight, with its pants down, and let me tell you, it's not a pretty sight.

Take the failed patent hustle of a couple of days ago, apparently maneuvering to enable proxy patent trolls to sue Linux. The idea, I gather, was to damage Linux, but without any way to trace it back to Microsoft. Thank you OIN and AST for foiling the plan. And by the way, are courts supposed to be used like this, to attack the competition? The court system is designed for adjudicating conflicts that are real. If you get damaged, you can go to court and try to be made whole. And so far as I know, there is no definition of abuse of monopoly that would exclude what just happened from being part of what antitrust law covers.

Then there is the hypocrisy factor. Ironically, Microsoft's lead attorney in the i4i patent litigation was sanctioned by the judge in the Memorandum and Order because he persistently argued to the jury that patent trolls shouldn't be allowed to seek money damages. And yet, out in the back, behind the garage, so to speak, it's "Psst... trolls, wanna buy a patent?"

What won't Miguel do for Microsoft, I ask myself? I take that as good news, frankly, as the new foundation wouldn't be needed by Microsoft to "supplement" what others already have in place if they could undermine what the community already has. So Microsoft funds and runs a new Brand X open source foundation which will be entirely under Microsoft's thumb. Now do you see the purpose of the GPL? Why the F in FOSS is so vital? If all that matters is viewing the code or excellence of code or whatever that concept was in the longstanding debate, look what you get: Microsoft's Brand X open source foundation to sell you patent licenses to proprietary code. An offer they hope you can't refuse. How do you like it?

The CodePlex Foundation, according to Redmond, enables the exchange of code and understanding among software companies and open source communities. Those OSS communities, however, aren't entirely trustful of Microsoft's intentions.

He [Ramji] will serve as president of the CodePlex Foundation for at least the first 100 days but is also departing Microsoft before the end of the month for another software vendor.

Bergelt said he suspects that strategic agenda was to stall or slow the growth of Linux by seeing the patents ultimately fall into the hands of organizations that would use them to pursue lawsuits against people who use or distribute Linux. Microsoft has said that it believes Linux and other open-source programs violate more than 200 of its patents.

“One has to wonder if the CodePlex Foundation announcement timing was intended to quell the storm over Microsoft's attempt to sue GNU/Linux vendors by proxy.”Over at the Mono-Nono Web site, one commenter argues that "The whole “microsoft opening up to open source” things reminds me of this movie:

http://www.youtube.com/watch?v=n3bI71P_8O8

“We come in peace”.

“Do not run! We are your friends!”

Yeah… right!"

There is already some FUD out there, such as the essay titled "Will Microsoft's Open Source Initiative Kill Linux?"

This comes from Ken Hess, who has gone ahead with a lot of trollish anti-Linux rhetorics recently. He once invited Microsoft to hire him in one of his columns. Apart from the headline, however, the body of arguments seems rather reasonable.

In other patent news that we shall write about later, Microsoft has managed to overturn a patent judgment regarding Alcatel-Lucent's claims. From Reuters:

A U.S. court of appeals on Friday overturned a $358 million damages award against software maker Microsoft Corp in a long-running patent dispute with French telecoms equipment firm Alcatel-Lucent.

The United States Court of Appeals for the Federal Circuit, which handles many patent and trademark cases, held that Microsoft did indirectly infringe Alcatel's patents, but said the damages awarded against the firm were not justified and must be retried.

"The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments." —Oracle Corporation, IBiblio: Oracle Corporation's position paper on software patents