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Microsoft's new anti-Linux patent strategy

By   |  May 27, 2010

Patent threats from Microsoft against Linux are not new. But now that bastion of proprietary software appears to have a new, more insidious, strategy in its quest to undermine open source software. It is now getting its partners – companies that want to and need to be on its good side – to license Linux from it. On the surface it’s a crazy proposition but there is some method in this madness.

Remember, Microsoft already claims that Linux infringes on more then 200 of its patents and has struck a pact with Novell, a central part of which is that it won’t sue Novell’s customers for using Linux. For a while back in 2007 it looked as if Microsoft was readying for an all out legal assault on Linux.

But, had Microsoft sued Red Hat, for example, it would very likely have ended up in a courtroom and Microsoft would have been forced to explain exactly which patents it believes Linux treads on. That’s not an ideal situation for the company.

So instead of calling out Linux directly, Microsoft is now quietly getting partners to sign agreements that effectively endorse Microsoft’s claim that Linux infringes on its patents. The key is that Microsoft is going after partners that depend on it for their own survival; companies like Amazon and IO-Data, both of which have licensed Linux from Microsoft in the past few months.

Clearly Microsoft isn’t looking to go after the likes of Red Hat and have its hand forced in a court of law. In fact the company is already working on virtualisation with Red Hat and there has never been any mention of Linux patents in that agreement.

Now, as Glyn Moody points out, the most recent piece of the puzzle comes from Horacio Gutierrez, Microsoft’s intellectual property chief and a lead player in Microsoft’s ongoing patent strategy. Gutierrez’s blog post about the current Apple-HTC patent spat is interesting for a number of reasons. The most obvious is the question of why Gutierrez even bothered to pen the post. Obviously the ongoing Microsoft battle with Google (the real target of Apple’s suit) is the most likely reason for Gutierrez’s interest. But read the whole thing and it starts to look like a warning, to mobile phone makers in general and software developers in particular. He writes:

“In the next few years, as the IP situation settles in this space and licensing takes off, we will see the patent royalties applicable to the smartphone software stack settle at a level that reflects the increasing importance software has as a portion of the overall value of the device. In the interim, though, we should expect continued activity.”

In short Gutierrez is saying that software is a key part of the value of smartphones and Microsoft is all about software and patents. he’s also saying that the company is ready to claim its “royalities”, even if this requires “continued action”, much like the Apple-HTC suit.

Microsoft is not threatening Linux directly but, as a increasingly important player in the smartphone market, Linux is going to be in the firing line. Much like the Apple-HTC suit is not really about HTC but rather about Apple vs. Google, Microsoft will go after mobile phone makers that ship Linux-based phones. Those without patent portfolios equal to Microsoft’s will be forced to bow to Microsoft and license Linux from it, implicitly endorsing Microsoft’s claim over Linux.

Gutierrez finishes with the caution: “Apple v. HTC was not the beginning of this process, and it isn’t the end of the story either.”

That we can be certain of.

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