Bonum Certa Men Certa

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

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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