Innovate Don’t Litigate!

Critics of my writing in Blind Confidential and elsewhere and various public statements I’ve made over the years often complain that I treat Microsoft too softly.  Often, these people fall into those with religious obsessions with either Apple Computer or the GNU/Linux platform and represent the views of people who hate Microsoft no matter what the Redmond giant says or does.  This week, however, I find myself in a position in which I need to speak out against MS, a company I do believe has led the pack in their commitment to accessibility, over recent reports in Fortune magazine and, last night, on NPR about threats of using patents against users of the GNU/Linux family of operating environments.

 

In the Fortune article, repeated on NPR last night, Microsoft claimed that various distributions of the GNU/Linux OS violated something on the order of 235 patents held by Microsoft.  Of course, Windows probably does not violate any patents held by developers of GNU/Linux software because these developers oppose software patents and haven’t filed for any.  In a traditional intellectual property battle between corporate giants, each company will show up with its portfolio of patents, assert which ones they feel the other company violates and they will trade licenses and a bit of cash if one has more than the other. 

 

When a huge corporation takes on a small player, the little guy probably doesn’t have a lot of patents with which to defend itself and the bully effect can force a small innovative company into bankruptcy just trying to defend itself against legal action – frivolous or not.  In the inverse situation, when a small but highly innovative company tries to protect its intellectual property against an industry leader, the large player can often keep the case in court long enough to force the smaller player to fold its hand due to outrageous legal bills. 

 

In the big company versus small company battles, the big company might use patents and other intellectual property laws to “drop boulders in the path of the smaller company’s road map” in order not to actually protect the innovation of the big company but, rather, to minimize competition from smaller, more nimble organizations who may actually offer more interesting products.

 

Microsoft can sue GNU/Linux developers for violating their patents; Microsoft can also sue users of GNU/Linux systems as, under US IP law, using a product that violates a patent is an actionable behavior.  Thus, Microsoft can sue companies who have switched to GNU/Linux systems in order to slow down the spread of the free alternative to Windows. 

 

Benjamin Franklin, founder of the US Patent and Trademark Office (USPTO) certainly rolls over in his grave when he hears that patents and trademarks are being used not to “promote invention” but, rather, to block innovative competitors.  Microsoft should promise not to prosecute its pile of patents against free software developed mostly by volunteers who do not file patents which could probably cause question on many aspects of software in the Microsoft catalogue.  At the same time, people who agree that such use of patents and trademarks should look at patents held by Microsoft and try to find published prior art to challenge the patents if MS does, indeed, choose to litigate rather than innovate.

 

Afterward

 

Blind Access Journal and Desert Skies (links above) both reported on a new IP lawsuit filed by Freedom Scientific against Serotek, makers of System Access, RIM, RAM and the Freedom Box line of products.  I haven’t read the complaint and, as this case regards trademark, a topic I’ve never really spent much time thinking about, I probably can’t provide much intelligent commentary on the case.  We’ll see what happens as it unfolds and I expect that Shandro, Bishop and others will probably follow the story as it progresses.

 

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