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Re: Microsoft going after Linux?

From: Rex Ballard
Subject: Re: Microsoft going after Linux?
Date: Thu, 26 Feb 2009 17:42:36 -0800 (PST)
User-agent: G2/1.0

On Feb 25, 8:28 pm, "amicus_curious" <> wrote:
> "ray" <> wrote in message
> > On Wed, 25 Feb 2009 19:03:27 -0500, Rjack wrote:

> >> "Microsoft has filed a suit against TomTom, 'alleging that the in-car
> >> navigation company's devices violate eight of its patents — including
> >> three that relate to TomTom's implementation of the Linux kernel."

> >>

> >> Sincerely,
> >> Rjack :)

> > MS has three patents relating to implementation of the Linux kernel?
> > Rather odd.

> They weren't obtained for Linux, I would think.  Rather Linux implemented
> something that had been patented as an enhancement to DOS for Windows95.  No
> one checks these things and consequently big companies cross license each
> other to cut down on the litigation or threats.

Actually, these things ARE checked.  Contributors must certify that to
the best of their knowledge, the work being contributed is an ORIGINAL
work, and must grant permission to use that original work on a non-
exclusive basis.

If an employee of Microsoft contributed source code to Linux, and it
was his original work, he could theoretically license the work to BOTH
Microsoft AND Linux on a non-exclusive basis.

On the other hand, if the employee fraudulently claimed that the work
was original, the employee could be charged with criminal fraud,
criminal copyright violations, and criminal patent fraud.  The Linux
or OSS organization, on the other hand, would be exempt.

By the way, it is worth noting that Linux code is just ONE archive.
There is also BSD archives dating back to the 1980s, and IBM source
code dating back to the 1960s.

In the case of an inventor claiming originality improperly, the burdon
of proof is to prove that the inventor had actually SEEN the other
device or implementation, had copied the implementation, and had THEN
represented it as original work.  Since the liability stops with the
individual, the criminal case would have to prove "beyond a reasonable
doubt" that the individual was knowingly claiming someone else's
intellectual property as his own.

Keep in mind too that software patents only cover specific
implementations, not all possible implementations of a device.  If
there is ANY significant difference (significant being something
beyond variable renaming and such), it would be a DIFFERENT device,
and would not violate the patented device.

Typically Linus and his team choose from a number of different
possible implementations, and often debate the merits of such choices
extensively before making the final choice of what's in and what's
out.  Perhaps Microsoft got one of the disgruntled loser's
implementations - which might even be DOCUMENTED and DOCUMENTED as a

Imagine Linus or Maddog coming to the stand and saying "yeah, we
looked at doing it that way, but decided there were too many security
risk and that the kernel would start crashing if we did it that way".

Now, imagine this times 8, or 256, or even times 1,000.

Do you think that Microsoft would want it made public that they've
been using Linux' REJECTS?

>  It is expensive to apply
> for patents and little companies don't do so much of it,

Actually, filing an application isn't that expensive for a smaller
This lets them establish date of first discovery.  They have a certain
of time to complete the patent search and finalize the application.
After that
amount of time, the applicaton is denied and can't be patented in the
In effect, it's "public domain".

There are lots of patent troll companies who file incomplete patent
applications and then complete the filings if someone else starts to
perfect, develop, and market their original invention.  Even then,
it's very hard to get big royalty checks in these scenarios.  A penny
or two per implementation is about the best one can hope for.

> so they are caught
> up short and have to license those things that they, probably inadvertently,
> infringe on.  Tom-Tom is in that kind of fix.  Linux is just caught in a
> cross-fire or collateral damage.

There are so many variable here, that it's really hard to even
on the outcome.  Tom-Tom could bring in the entire Linux community and
force large quantities of disclosures - including possibly even every
Microsoft claims violates their patents - in Linux and OSS software.

If they can show a pattern of fraudulent patents, they could have the
case thrown out on that basis.

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