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Innovate Don’t Litigate!

May 20, 2007 • Darrell Shandrow Hilliker

Blind Confidential (Weblog)
Friday, May 18, 2007

Innovate Don't Litigate!

By Chris Hofstader

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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