Comments

• Florian Mueller

  2010-07-05 07:22:39

  Concerning Versata, while I wrote what I mentioned above concerning interoperability, I mentioned (and I guess you just forgot to mention) the history of Versata as a patent aggressor against SAP.

• Dr. Roy Schestowitz

  2010-07-05 14:00:09

  The author of the original allegations has sent me the following by mail:
  
  

  It would be nice if Müller could elaborate on his assertion about Microsoft not using patents offensively because as far as the rest of the world is able to tell, Microsoft has been doing that for years to stifle innovation and competition:
  
  Here is one example of many dozens:
  
  http://www.linux.com/archive/feature/37584
  
  http://www.eweek.com/c/a/Linux-and-Open-Source/2002-Memo-Reveals-HPs-Fear-of-Microsofts-Litigiousness/
  
  http://www.pcworld.com/article/116973/hp_feared_microsoft_war_on_open_source.html
  
  That's also around the time that HP fired Bruce Perens for doing the work he was hired by them to do.
  
  He can find fault with IBM, as long as it is real fault, but he should please be so kind as to not expect others to indulge in his (best case) fantasy / (worst case) astroturfing about Microsoft being in anyway helpful, constructive or useful.
  
  [...]
  
  One more:
  
  http://www.businessinsider.com/microsoft-not-apple-will-sue-you-to-death-msft-2010-3
  
  While we're at it, the IEEE could take a better stance on eliminating software patents.
  
  [...]
  
  To 'win' the number of software patent attacks described in the IEEE report, how many others were launched but failed in the courts.
  
  Not that failing in the courts is a failure. The attacks *ARE* used as FUD and for extortion: http://press.redhat.com/2009/09/09/microsoft-and-patent-trolls/

• Florian Mueller

  2010-07-05 15:50:49

  I still don't see any activity there that meets my definition of an exclusionary use of patents.
  
  The HP memo is well known to me. That was during the EU fight over the software patent directive and I showed that material to many people. That was 2004. Six years later, the predictions in that memo haven't materialized. I'm not going to substitute today's reality for past predictions that didn't pan out because six years is such a long time that the prediction must by now be considered inaccurate, even though it was probably well-founded at the time being. But times change. In the meantime, the EU antitrust decision was upheld by the then-Court of First Instance, and other things changed.
  
  The examples there are all fiction, not real. IBM's letters to TurboHercules (both letters have to be seen together) are real. Apple's lawsuit against HTC is real and there's no indication at all that Apple would have contented itself with royalties.
  
  I don't mean to say that only lawsuits are "real". But show me one company that was sued by Microsoft that couldn't have solved the problem by paying royalties. HTC found a solution with Microsoft, not with Apple.
  
  The Red Hat story is also rather imaginary. It's based on the claim that Microsoft wanted to sell only to "trolls" so they would assert those patents against Linux. On slashdot someone wrote that it was an auction, so it was just about who would pay the most for those patents which Microsoft no longer considered useful. I wasn't there, but no one has delivered any credible evidence that it wasn't an auction process. Also, I haven't seen any serious indication (other than Red Hat telling its version of the story, directly and through Groklaw) that Microsoft didn't know who they were selling those patents to. If they just wanted the best price, they won't have cared about whether the buyer was affiliated with the OIN even if they knew it all along. From a business point of view, I consider the theory of them wanting to maximize the price much more likely than that of them wanting to sell to a troll because then they could have picked a troll of their choice secretly and done the deal in a way that OIN could never have bought the patents. But the thing is that even if I assume for the sake of the argument that they wanted a troll to do that kind of thing: a troll just wants money. That's never as bad as someone like IBM or Apple wanting to shut out competition entirely.
  
  Any of you who read this -- put yourselves into the shoes of a business. Would you rather have someone collect royalties from you (even if, hypothetically, through trolls) or would you rather be shut down entirely? Of course, ideally neither of the two things happens. But if you have to pick one, no businessman in his right mind can prefer for his business to be shut down or out. And that's why I believe I have a very legitimate lesser-evil theory. I still haven't been given an example of Microsoft using patents to shut anyone else out. All of the examples that were shown have been refuted by me on logical grounds.

• Dr. Roy Schestowitz

  2010-07-05 16:16:50

  You're simply eluding evidence like SCO and Acacia. You need to read up on it.

• Florian Mueller

  2010-07-05 16:34:51

  > You’re simply eluding evidence like SCO and Acacia. You need to read up on it. <
  
  You keep bringing up things that are outside of what I said.
  
  Where's the patent component of SCO? Where's Microsoft's involvement with Acacia and even if there were to be one, how does Acacia meet my definition of using patents to shut out competition?

• Dr. Roy Schestowitz

  2010-07-05 16:48:20

  Where's the patent component of SCO?

  
  
  Why limit it to patents? The Halloween Memos mentioned both patents and copyrights as anti-Linux attack vector.
  
  

  Where's Microsoft's involvement with Acacia...

  
  
  Do your homework. :-)
  
  Your definition of "shut out competition" is a narrow one.

• Florian Mueller

  2010-07-05 17:34:39

  > Why limit it to patents? <
  
  Because that's the way I defined the focus of my blog: FOSS Patents. I didn't say "FOSS IPRs".
  
  You just couldn't present an example of an exclusionary use of patents by Microsoft because there isn't any, at least none has ever been made known.
  
  I don't think "to shut out competition" is a narrow definition. I don't claim that everything short of shutting out competition is fine, but I continue to view the use of patents to shut out competition as the single biggest threat, far worse than trolls.
  
  It may not be your view of the world in which Microsoft is the Great Satan. But there's definitely a need for people to take the pragmatic view that going for a part of someone's wallet - with patents - is indeed a much smaller problem than going for someone's throat - with patents.
  
  Copyright isn't my concern at all. Copyright in software is only infringed intentionally. Software patents are infringed inadvertently most of the time. That's why patents can be used against innocent people; copyright cannot (at least not successfully).

• Florian Mueller

  2010-07-05 07:19:42

  One day I may grow tired of having to deal with those kinds of conspiracy theories but anyway:
  
  I am not involved with Monty's appeal in any way, nor with anything related to it. I don't know anything more about it than MLex and the Financial Times reported.
  
  Nevertheless I'd like to clarify something that goes back to 2008: Monty is not a dollar billionaire. MySQL was sold for a total of $1 billion. Monty, who co-founded the company with two other people, was one of many shareholders at the time. After several rounds of venture capital and large stock option packages for management I can't imagine he had even 10% of the shares when the company was sold. On his blog he once wrote something that indicates a low single-digit percentage.
  
  I am not "assigned to IBM". I fight for interoperability and against the exclusionary use of patents and corporate hypocrisy in the FOSS context (where patents are usually the litmus test that unmasks some orgnaizations). In those areas, IBM is simply the biggest problem but not the only one. My blog speaks for itself, addressing issues involving a lot of companies. If I get criticized for not mentioning Microsoft enough (even though I did mention them in several negative contexts already), it's simply because those issues aren't at this stage Microsoft issues. Microsoft doesn't have a hypocrisy problem and it doesn't use patents to shut out competition (so far at least). That's why.
  
  Since this same article reports on Versata, I encourage you to read my blog posting on the Versata complaint against SAP, which supports the concept of interoperability and concludes that Versata may have a case in that regard and that all major players, also including SAP, should provide interoperability. If you believe in your claim that Microsoft and SAP are allies, it should be one of many reasons for you to begin to realize that I have an issue focus, not a company focus.

• Dr. Roy Schestowitz

  2010-07-05 09:27:57

  Microsoft doesn’t have a hypocrisy problem and it doesn’t use patents to shut out competition (so far at least). That’s why.

  
  
  That’s why you need to get your facts straight.
  
  “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today."

  --Bill Gates (when Microsoft was smaller)

• Florian Mueller

  2010-07-05 10:10:39

  That Bill Gates quote also appears on NoSoftwarePatents.com, so this isn't news to me.
  
  What I mean is an actual exclusionary use of patents: forcing someone out of the market with patents. All I've ever seen Microsoft do with its patents has been licensing deals. I don't know of any incident comparable to Apple's strategy concerning HTC or IBM's threats against TurboHercules (although TurboHercules's request for an offer of z/OS licensing terms would in my opinion have been a basis on which IBM could have said "we want X amount per copy of z/OS and we want an additional Y amount for the patents involved."
  
  If there is any example of Microsoft using patents in any similar way, please let me know.

• Dr. Roy Schestowitz

  2010-07-05 10:30:38

  To give just one example:
  
  "Microsoft retaliated against industry participants that supported DR-DOS. For example, when Z-Nix Inc. bundled DR-DOS 6.0 and Microsoft Windows 3.1, proclaiming no incompatibilities, Microsoft’s Brad Silverberg wrote: "look what znix is doing! cut those fuckers off." Within three weeks, Microsoft demanded an audit of Z-Nix’s entire business and then commenced a copyright and trademark infringement action. Z-Nix was forced to file for bankruptcy in or around 1995"
  
  

  --Comes Petition [PDF]

• Florian Mueller

  2010-07-05 10:39:51

  Sorry, but that example is unrelated to what I said.
  
  Apart from going back 15 years (while I talked about patent use in 2010), where's the patent angle there?
  
  Next try. I want to have my facts right. But I talked about using patents to force competitors (particularly FOSS-based ones) out of business.

• Dr. Roy Schestowitz

  2010-07-05 10:48:50

  TomTom was on the verge of going out of business when Microsoft launched its patent attack (with the expectation that TomTom would not be able to fight back).

• Florian Mueller

  2010-07-05 10:56:15

  TomTom always had the option to do a license deal with Microsoft. Even TomTom never denied that fact. They refused, and rather than initially agreeing to pay, TomTom asserted three patents of its own. According to ArsTechnica, those were "Generating a Maneuver at the Intersection Through A Turn Lane" (5,902,350), "Route Generation in a Vehicle Navigation System" (5,938,720), and "Quick Selection of Destinations in an Automobile Navigation System" (6,660,994).
  
  The key difference between TomTom and the examples I mentioned is that TomTom had an offer on the table from the beginning to do a license deal. Only because TomTom didn't accept it, the case went to court. HTC was never offered a license by Apple to the best of my knowledge, and TurboHercules was never offered a license by IBM.
  
  TomTom's brinkmanship can't be blamed on Microsoft.

• Dr. Roy Schestowitz

  2010-07-05 11:00:42

  TomTom doesn't need to pay Microsoft for mere allegations. TomTom did the right thing. Software patents are not legal in Holland.
  
  But carry on spinning it. Microsoft loves that.

• Florian Mueller

  2010-07-05 13:29:10

  Sorry, Roy, but you accuse me of spinning while I tell the facts and you ignore one of the most fundamental legal concepts in this context by saying: > Software patents are not legal in Holland. <
  
  Patents always relate to a target market. They are unrelated to where the "inventor", the patent holder or the alleged infringer are based.
  
  I didn't say that I want TomTom to pay Microsoft. In my posting on Versata vs. SAP I made it clear that the best thing that can happen to a patent is usually its invalidation. However, the conversation here started with me pointing out that since I focus on the exclusionary use of patents I see a fundamental difference between someone like Microsoft collecting royalties and others like IBM or Apple trying to shut out competition.
  
  If you run a business of your own one day, I'm sure you'll appreciate that essential difference, too.

• Dr. Roy Schestowitz

  2010-07-05 13:45:07

  The key issue is that Microsoft sues companies which are its competitors. Microsoft uses software patents to do this. You're still trying to paint Microsoft, which extorts many companies in this way, as benevolent compared to IBM. I am not surprised.
  
  The (il)legality of software patents is applicable here, but it's a distraction.

• Florian Mueller

  2010-07-05 15:38:12

  I never denied that they sue, but it happens very rarely and there's a fundamental difference between a lawsuit resulting from someone's unwillingness to pay royalties vs. a lawsuit resulting from an aggressor's intent to shut out competition.
  
  I wouldn't say "benevolent compared to IBM" as you tried to describe my position, but I would certainly say that it's "not anticompetitive as opposed to IBM and Apple and some others".

• Dr. Roy Schestowitz

  2010-07-05 16:14:36

  Microsoft sues a lot. It doesn't happen very rarely. They sue/serve papers quietly and then reach settlements. It's racketeering.

• Florian Mueller

  2010-07-05 16:39:19

  > Microsoft sues a lot. It doesn’t happen very rarely. They sue/serve papers quietly and then reach settlements. It’s racketeering. <
  
  We keep going in circles because apart from you bringing up things that are imaginary rather than documented facts, I have to keep explaining to you that my distinction is made between the use of patents for exclusionary purposes vs. collecting royalties.
  
  What would you like whatever third party to do with you personally -- go for a part of your wallet or go for your throat?
  
  I've given the examples of IBM going for TurboHercules's throat and Apple for HTC's throat, in both cases with patents. You still don't have a single example of Microsoft going for someone's throat with patents.
  
  I feel I've made a really good-faith effort to try to explain that difference. But I can't make that choice for you. If you think going for a part of someone's wallet is an equally big issues as, or a bigger issue than, companies going for competitors' throats, then I hope that if anyone ever attacks you, he'll just go for some of your money even if you refuse to consider it the lesser evil in this discussion.

• Dr. Roy Schestowitz

  2010-07-05 16:54:45

  IBM is not going for anyone's "throat" (not even metaphorically). You can shout "IBM" all you want, but hardly anyone is buying it, not even in Slashdot.

• Florian Mueller

  2010-07-05 17:30:05

  > IBM is not going for anyone’s “throat” (not even metaphorically). You can shout “IBM” all you want, but hardly anyone is buying it, not even in Slashdot. <
  
  There was no problem with having a reasonable discussion on slashdot (in which some of my comments got rated up to level 4 or 5) until there was a call on Groklaw for every PJ fanboy with mod points to go over and use those points.

• saulgoode

  2010-07-07 18:53:54

  What I mean is an actual exclusionary use of patents: forcing someone out of the market with patents. All I’ve ever seen Microsoft do with its patents has been licensing deals.

  Unless those licensing deals permit use, modification, and redistribution by any recipient of the covered code, the terms and conditions of those licenses remain inconsistent with the core principles of software freedom.

• Dr. Roy Schestowitz

  2010-07-05 17:50:02

  You can shout “Groklaw” all you want. :-)