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 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.
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.
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.
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.