Hard line on software

IF YOU CAN’T BEAT ‘EM, tax ‘em. That seems to be Microsoft’s thinking in regard to the “free and open-source software” movement. The Windows powerhouse had complained for years about open-source programs cribbing its intellectual property, but this month it put a number on its discontent: It claimed in Fortune magazine that 235 of its patents were infringed by the Linux operating system and associated programs.

Microsoft executives say they’re not itching to file lawsuits; rather, they’re just trying to make money from their patents. To that end, they want distributors and users of open-source programs to license the relevant Microsoft technologies, as Novell did last year. Like a number of other firms, Novell sells “subscriptions” that combine Linux and other free programs with technical support. In exchange for Microsoft’s promise not to sue its customers for patent infringement, Novell agreed to give Microsoft a percentage of the money it made on those subscriptions.

Critics of Microsoft’s pronouncement accuse it of trying to sow doubt in the market. The patent warnings out of Redmond seem designed to make open-source programs – which have won significant shares of the market for certain Internet-related and corporate computer network software – appear riskier and potentially more costly than Microsoft’s products.

Whatever its motives, Microsoft may be picking a fight it can’t win. Free-software advocates have challenged the company to specify which patents were being violated so open-source developers could write around them. And a group of high-tech companies with critical patents stands ready to defend Linux and bring its own claims of infringement against Windows.

More significantly, the battle raises questions about the value of software patents. One of the rationales for patents in general is that they provide a financial incentive for inventors to reveal what might otherwise be trade secrets for the sake of promoting scientific and technical advancement. But if the invention is something that others in the field could have figured out for themselves – as software engineers frequently do – it doesn’t deserve a patent. The free-software movement also challenges the notion that patents create the financial incentives needed to foster invention. Despite licensing rules that make it hard for them to control the fruits of their work, developers of open-source programs have been prolific and innovative, much to the public’s benefit.

Ironically, Microsoft has pushed Congress and the courts to reform patent law to guard against manipulative use of bogus patents. And the Supreme Court has aided that cause, issuing a series of rulings in recent years that make patents harder to obtain and easier to defeat. Perhaps Microsoft’s patent claims against Linux will lead to even tighter limits on software patents – to everyone’s benefit, including Microsoft’s.