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In the last three years, Microsoft claims to have entered into over 600 licensing agreements with companies small and large over alleged patent violations in "Linux". One consistent feature of all these agreements is that their contents are unknown. No one, other than Microsoft and the relevant "licensee", knows which parts of "Linux" violate which patents. Another consistent feature is that most of the "licensees" are small companies without the resources to take on Microsoft in a patent claim. However, there are a number of larger or more high profile companies that have also entered into such agreements, including Amazon, Novell, Xandros, Turbolinux, TomTom and most recently HTC. The whole situation is clouded in mystery under a veil of PR speak and mumbo jumbo. So what the hell is going on? What can we deduce from what we know so far?

The Who

The identity of the companies that have entered into these arrangements is an important factor to consider. Most of the companies involved are small, and presumably have small, or non-existent patent portfolios; basically companies vulnerable to attack by a company with the financial power, and massive patent portfolio, of Microsoft. These are companies that, when faced with a patent claim by Microsoft, will happily enter into a "friendly" licensing agreement, rather than risk death by a thousand patent wielding lawyers.

Now, the thing about software patents is that the bar for getting them is pretty low. The US Patent Office is overworked and underpaid. Getting a patent is pretty damn easy and Microsoft has certainly taken advantage of this fact. Patents only come under real scrutiny when someone seeks to enforce them. Therefore, if someone holds a questionable patent, there is a real risk in seeking to enforce it. If you choose a well resourced target, they might just challenge your patent, and if it’s found to be invalid (a likely possibility given the low bar set by the patent office), then it’s useless. A far more effective strategy would be to target the weak, give them an opportunity to do a deal with you, and then use that fact as evidence of the voracity of your patent claims against Linux. You get the same effect without the risk of losing the patent.

So how does this analysis apply to well resourced companies like Amazon, Novell, HTC and TomTom? Obviously, resources are a relative concept. Microsoft is a massive cash cow. But more importantly, Amazon, Novell and TomTom (as a consequence of joining the Open Invention Network) have reasonable sized patent portfolios. This puts them in the position to be able to counter sue Microsoft for their own patent infringements. However, given both sides risk their patents being invalidated through this process, they are better off entering into a cross-licensing agreement. HTC is a different kettle of fish. It has a relatively weak patent portfolio. However, it relies on Microsoft to provide the OS for a number of its handsets and is also under threat by Apple for patent infringement. Given this, it makes sense to enter into a deal with Microsoft. First, to protect its existing business as a distributor of Windows Mobile, as well as gaining patent rights with which it can resist the claims of Apple.

It is very interesting that Microsoft has not challenged, or attempted a licensing deal with two of the world’s largest users and distributors or potential distributors of Linux – ie. IBM and Google. Both have huge financial resources, formidable patent portfolios and no reason to do a deal with Microsoft – Microsoft has nothing that they want. If Microsoft genuinely believed that its "Linux" patents were valid, surely it would challenge two companies that are using Linux to generate their massive profits and, in the case of Google, challenging Microsoft’s fundamental business model.

So what does this show us? It shows us that the number of licensing deals Microsoft has done says nothing about the validity of their patent claims. It also shows us that the attack on high profile companies does not prove that Linux infringes Microsoft’s patents; rather, it simply reinforces how broken software patents have become. The fact that Microsoft has not gone after IBM and Google simply reinforces this conclusion.

The What

Because all of the licensing deals are confidential, no one knows "what" in "Linux" infringes on Microsoft’s patents. By keeping the "what" confidential, Microsoft does not need to identify the patents it claims are infringed. This means that Linux users cannot investigate these patents and analyse their potential validity if challenged.

Whilst almost all licensing deals keep the "what" secret, the TomTom deal has disclosed a bit about the "what", which would indicate that the breadth of Microsoft’s claimed infringement is pretty narrow:

TomTom will, however, remove the functionality that is covered under the FAT patents. This will guarantee that the code in TomTom’s Linux kernel can continue to be broadly redistributed downstream without patent encumbrances. This aspect of the agreement, along with specificity about which patents are infringed, are major factors that differentiate this agreement from Microsoft’s controversial deal with Novell. Source

Basically, the TomTom claim focussed on the use of the vfat file system in the kernel. If TomTom can code around the vfat patents and then have an unencumbered Linux kernel, does that mean the vfat patent is the only patent at the root of Microsoft’s claims?

Although the settlement has ended the conflict between Microsoft and TomTom, questions still remain about the implications for FAT in the broader Linux ecosystem. Microsoft has previously stated that this lawsuit represents an isolated issue and that the company does not intend to broadly sue Linux users. Upstream kernel developers could potentially adopt TomTom’s code changes in order to avoid future patent disputes with Microsoft over FAT. Source

But even though Microsoft doesn’t tell us "what" is covered by is telling in itself. Either it means that it is not confident of the validity of the patents themselves, or that they are patents, such as vfat, that are easily coded around. This is reinforced when you consider the "who" and the "what" together. Most of the "licensees" use embedded linux:

In recent years, Microsoft has entered into patent agreements with other leading companies that use Linux for their embedded devices, including Brother International Corp., Fuji Xerox Co. Ltd., Kyocera Mita Corp., LG Electronics, Samsung Electronics Co. Ltd. and TomTom International BV. Source

All device manufacturers that are likely to use the vfat filesystem to interact with external or remote filesystems. It may well be that the fact that these devices run Linux is purely co-incidental to the actual patent claims themselves. However, as a means of scaring people away from using Linux, the link to Linux is essential.

The When

Microsoft has only stepped up the publicity of these patent deals in recent times. Microsoft has been quietly amassing these patent deals over the last three years, presumably, so that when required, Microsoft can say “look at how many companies think there are patent problems in Linux”. So what’s going on in the tech world that might have triggered this? In my view, basically the "cloud" and mobile convergence. The iPhone or an Android device are basically a computer in your pocket, allowing you access to a rich web experience via internet aware applications. Likewise, Google’s upcoming ChromeOS is a cloud computing client. All of these technologies make Microsoft irrelevant. Microsoft has built its empire on software that runs locally, which it can sell millions of times over. With the new technologies, people want to have their apps and data whereever they go, regardless of the device they are using. With the advent of HTML5, more and more of the software that would traditionally run locally will run in the cloud. Device manufacturers are therefore no longer constrained in the choice of platform they use to provide this functionality. They can more and more look to free platforms; hence the growing number of Android based devices and other embedded network appliances that run Linux.

How does this relate to Microsoft’s patent claims. Basically, if Microsoft can create a fear of, or derive a revenue stream from, using open platforms, such as Android and Linux, it can buy itself some time to make sure it is still relevant as its traditional platform becomes more and more irrelevant. By attacking small embedded Linux devices for vfat patent infringements, it can kill two birds with one stone – limit both the proliferation of these devices, as well as the spread of Linux to new platforms, by implicating that the patent problem exists at the core of Linux.

The Conclusion

Obviously, this whole article is based on conjecture and speculation, however, it is an interesting analysis, which may point to a number of conclusions in relation to Microsoft’s recent patent enforcement activity. First, Microsoft is worried – not specifically about Linux per se, but about the shift of the computing world to new appliance-like devices and the cloud. Linux being just one player in this space. Secondly, the patent claims against “Linux” are in fact based on the vfat file system, and attacking “Linux” vendors and distributors is a convenient way to hit both embedded device manufacturers and Linux distributors at the same time. Thirdly, the patents that Microsoft claims to be infringed by Linux are probably not particularly robust, and/or where they are robust, they can be easily coded around.

8 Comments
  1. What is confusing to me is why the one KNOWN patent tollbooth (vfat) isn’t being bypassed altogether with a drive to switch to a different filesystem.

    UDF seems like it would be ideal – every modern operating system can read and write it (Windows XP doesn’t count as “modern” but even it can at least READ UDF out of the box, and 3rd-party drivers are available for writing). Being the same filesystem that DVD’s and Blu-Ray disks use, there are obviously plenty of “embedded” implementations of the filesystem out there, too. It also means it’d be harder for Microsoft to make their UDF support incompatible without messing up DVD/Blu-Ray handling in the process.
    VFAT is WAY too entrenched. I discovered that my shiny new Linux-based Android phone doesn’t come with UDF support enabled. (Annoyingly, it DOES support ext2 – but trying to format the microSD card with ext2 results in the phone whining that there’s no valid FAT filesystem on the card and refusing to mount it anyway. Hard-coded for FAT-only? DUMB!)

  2. I’m so sorry about the whole vfat/FAT issue, and I guess it gives a measure of a place where GPL/BSD licenses somehow have not succeeded. There are lot of places out there (cameras, camcorders, consoles, whatever) that do use a file system, and that file system usually is FAT. Why not XFS? UFS? ZFS? EXT3? . If GPL is a barrier to have EXT3, or a special version of EXT3, in every device we can think of, then there’s something wrong. And I’m sorry, I don’t care I don’t have access to the source files for the Camera/PS3/Xbox OS. I just want to be able to mount my filesystem whereever I plug my USB pendrive. EXT3/XFS/UFS should be supported everywhere, or, somehow it is more “expensive” than FAT, and it does not help me at all.

  3. I would have thought that the Google use of Linux internally does not breach Microsoft’s alleged patent as Gogle doesn’t sell it as an end user product. Also IBM will already have some significant cross-licencing in place with Microsoft given the origins of DOS, OS/2 &c.
    Camera’s, MP3 pplayers and phones rely much more on meta-data contained in files (e.g. MP3 tags) than on filenames so long file name support seems a minor issue for these types of devices.

  4. Excellent analysis and I fully agree with everything outlined. As a matter of fact, it concurs with some of my points in one of my posts here:

    http://www.linuxtoday.com/news_story.php3?ltsn=2010-04-30-011-35-OP-MS-LL-0001

    It is time to stop the shenanigans that MS is resorting to and hindering the progress and proliferation of Linux.

    It is time for the FSF, in conjunction with the Open Invention Network (OIN), to challenge MS by starting with an open letter demanding MS to explain and prove its claims. If they don’t comply, which most probably they won’t, escalate these demands by taking legal actions.

    Red Hat has already allocated defense funds, Google Android has recently been challenged (HTC), and IBM is racking good revenue using Linux on their mainframe, they ought to join efforts with FSF & OIN and take MS to court.

    Another action is for Linus to seriously consider releasing Linux under the GPL v3, or at least, release Linux under a revised GPL v2.x, which would include a new clause requiring any firm using Linux to disclose the terms of any contract/covenant if it involves Linux technology. In other words, any contract involving Linux has to be open or all its clauses related to Linux should be openly disclosed.

    I believe this should happen soon and it would stop all these shenanigans or at least force such firms from entering secret agreements that are helping MS in its marketing war against Linux.

    Some might say that adding this new clause to GPL 2.x could slow the proliferation of Linux, that might be true but, considering how companies like Amazon and HTC are benefiting from Linux and not giving back and not helping Linux proliferation, why care about them when their secret agreements with MS are damaging Linux proliferation and creating an open field for MS to wage its battles against Linux . Linux on the server is in pretty good shape but MS is still dominating the desktop, it is time to take such actions to break MS monopoly especially in the corporate world.

  5. “A far more effective strategy would be to target the weak, give them an opportunity to do a deal with you, and then use that fact as evidence of the voracity of your patent claims against Linux.”

    “Voracity” should be “veracity”. While Microsoft is clearly a “voracious” corporation (ravenous, gluttonous), the context of the sentence implies “veracity” (truthfulness).

  6. The big key to Gnu/Linux defence will be prior art. Let them come, huge swathes of patents will be nulled, disarming Microsoft and many other patent trolls out there. What will they do then eh?

  7. What is confusing to me is why the one KNOWN patent tollbooth (vfat) isn’t being bypassed altogether with a drive to switch to a different filesystem.

    UDF seems like it would be ideal – every modern operating system can read and write it (Windows XP doesn’t count as “modern” but even it can at least READ UDF out of the box, and 3rd-party drivers are available for writing). Being the same filesystem that DVD’s and Blu-Ray disks use, there are obviously plenty of “embedded” implementations of the filesystem out there, too. It also means it’d be harder for Microsoft to make their UDF support incompatible without messing up DVD/Blu-Ray handling in the process.
    VFAT is WAY too entrenched. I discovered that my shiny new Linux-based Android phone doesn’t come with UDF support enabled. (Annoyingly, it DOES support ext2 – but trying to format the microSD card with ext2 results in the phone whining that there’s no valid FAT filesystem on the card and refusing to mount it anyway. Hard-coded for FAT-only? DUMB!)

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