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Story: Microsoft answers IP questions posed in LXer open letterTotal Replies: 2
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Dec 11, 2006
10:25 AM EDT
LXer: When speaking about intellectual property, what is meant? It can't be copyright, since almost all Microsoft Corp. software is closed source, which means people who haven't got access to the code can't have infringed the copyright. Moreover, copyright infringement would be easy to prove, since most of what Steve Ballmer calls "Linux" is open source. Therefore, can 'intellectual property' be put on par with 'software patents'?

MS: Intellectual property generally refers to the four different ways that intangible assets can be protected. It does include copyrights, which are an important way that Microsoft protects its technology that is not simply limited to literal, executable code but also includes other copyrightable ‘expression’ in software, such as underlying design materials. Trademarks, trade secrets, and patents are other important types of intellectual property. Patents in the software industry are like patents in many other industries – innovations can be protected through patents that then provide a basis for licensing those innovations to others. Microsoft’s extensive patent portfolio has allowed for significant license agreements with other industry innovators, including: Novell, Cisco Systems, HP, SGI, Xerox, SAP and Siemens. These agreements permit the parties to cross-pollinate their development efforts with each others’ patented innovations, which results in making key innovations more broadly available across varying technologies.

Translation: Yes, with IP we mean patents. And if the SCO case ever flies it will mean method & concepts too. We like patents because we can exclude the little guy.

LXer: Since the general belief is software patents aren't enforceable in (amongst others) Europe, does this mean Microsoft doesn't have any Intellectual Property from a European perspective? For the shareholders Steve Ballmer was talking about, this would be very important information.

MS: While software ‘as such’ is not patentable in Europe, innovations implemented in a computer can be patented. Put another way, just because an invention is embodied in software or other IT technology as opposed to a mechanical device or chemical process, does not disqualify that invention from getting patent protection. Microsoft, like many others, does have patents issued in Europe on such innovations. Intellectual property is an essential element of modern business development in Europe and elsewhere. Access to and exchange of intellectual property is essential for economic growth and development. Through access to and interaction with other companies’ technology and IP, it is possible to expand existing innovation and deliver new solutions for customers while retaining IP and encouraging future investment.

Translation: We have found a loophole in EU law that gives us *some* patents but they don't apply to Linux. So, we're lobbying the EU with FUD and money to change to a US-style patent regime.

LXer: Why does Microsoft Corp. never specify which Intellectual Property Linux infringes on? Is this because Microsoft Corp. doesn't know, is it because Microsoft Corp. is afraid its Intellectual Property isn't enforceable, or is there any other good reason for this? Why doesn't Microsoft Corp. tell to its shareholders for which Intellectual Property Microsoft wanted to "get the appropriate economic return"? This is important information for the shareholders.

MS: Through our agreement with Novell, Microsoft is providing access to thousands of patents. As is standard with most companies in this and indeed other industries, we do not publicly list the patents that are applicable to a product or by a component. One of the benefits of patent agreements is that they allow freedom of action now and in the future. Novell’s products and Microsoft’s products change on a regular basis and conducting a complete patent analyses for every version of every product is costly and complex. As we’ve stated, we undertook an analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant which Novell and Microsoft agreed on for the benefit of our customers.

Translation: It's because we don't know. We don't have a clue what we patented really, let alone what Linux might infringe. But, we think there's probably something in there that we can start a lawsuit over so we threatened Novell with that during the talks.

LXer: If Linux infringes on the Intellectual Property, why hasn't Microsoft already tried to "get the appropriate economic return for our shareholders from our innovation." earlier? The shareholders could already have gotten the appropriate economic return for their investments already if Microsoft Corp. would have taken action, don't they?

MS: Our priority has been to license our technology widely. It has taken us time to think through how to bridge two very different software licensing models through technical and IP collaboration. Microsoft has also had to evolve our thinking over time. From the announcement of our “open to all interested parties” IP licensing program in 2003 to increased collaboration with open source businesses like JBOSS, SugarCRM, XenSource, MySQL and Zend, we’ve been focused on meeting the needs of our customers and partners. Our agreement with Novell is another example of that.

Translation: We were waiting to see if the SCO kite would fly first or if developers would get suckered in by shared source. Now neither of those succeeded we have to try a different tactic.


Dec 11, 2006
10:53 AM EDT
Meat Loaf applies here:

You took the words right out of my mouth...

Dec 11, 2006
4:17 PM EDT
Thanks... NOW I understand what he said..... I think ;-)

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