Bonum Certa Men Certa

Why Are We Waiting for Microsoft to Sue?

Let's Sue Each Other...

For the last few years, more so in the passing months it seems, much of the focus and energy of the Free Software community has been allocated towards discussions and preparations for Microsoft's coming legal offensive against GNU/Linux and Open Source. Of course, many observers have some legitimate questions about the quality, or even legitimacy, of Microsoft's patent portfolio.

With each passing week, and unfilfilled threat, it becomes more and more apparent that Microsoft's intention is to keep the community focused on collective sandbag-piling and allow Microsoft to catch-up technologically, rather than risk testing their spurious software patents in a court of law.

I contend that we should not wait for Microsoft to (finally) file a software patent infringement case against a Free Software developer or user, I believe that one of us should sue a Free Software developer or user. No, I haven't been drinking.

I have said before that I believe that software patents are invalid and that companies such as Microsoft, Novell, AT&T, IBM and Sun have a vested interest in the perpetuation of the software patent myth. I have also stated that I believe allowing the continued stockpiling and cross-licensing of these illegitimate patents is leading to the cartelization of the software industry.

In the few occasions where companies have been unable to reach amicable licensing terms (or, avoid court, at least), and tech industry giants do find themselves in court bickering over their software patents, they are usually very very careful to present the court with a very narrowly construed legal question rather than risk a ruling on the overall legality of software patents.

For instance, in MS v ATT the parties simply wanted the U.S. Supreme Court to rule on the applicability of U.S. patents abroad, and stipulated that such activity would be infringing if within the U.S. to avoid the software patent legitimacy question - or, more accurately, the answer.

Despite this very narrow question before the Supreme Court, it seemed apparent that Justice Scalia was telegraphing to all interested parties just how things would go if he were ever to have the question of software patents before him...
MR. OLSON [For Microsoft]: The ‘580 patent is a program, as I understand it, that’s married to a computer, has to be married to a computer in order to be patented. JUSTICE SCALIA: You can’t patent, you know, on-off, on-off code in the abstract, can you? MR. OLSON: That’s correct, Justice Scalia. JUSTICE SCALIA: There needs to be a device. MR. OLSON: An idea or a principle, two plus two equals four can’t be patented. It has to be put together with a machine and made into a usable device.


So, my idea is simple - a Free Software developer or company with at least one software patent covered by the EDU-Nix Dual Mode CD sues me (be gentle, I'm broke), and we will pose the question directly to the court:

Are Software Patents Legal?

I, unlike Microsoft et al, am looking forward to the answer.

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