back to article Microsoft puts a figure on open source 'patent infringements'

Microsoft's top lawyer says open source software violates exactly 235 entries in the firm's vast patent portfolio. General counsel Brad Smith released the figure to Fortune as part of Microsoft's long-running campaign to seed doubts over the legality of Linux and other open source efforts. Redmond's licensing boss Horacio …


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  1. Nick Ryan Silver badge


    Really? So which patents are these? If MS are so adamant that 235 items "violate" their patents, what exactly are these violations then? it's very easy to pick a figure and throw it around with the might of a mass-marketing department and lots of press, it's another to actually demonstrate the violations.

    According to the rules, the software processes should be innovative, and as I'm sure most folks would agree, about the only innovative thing MS are capable of is new and better ways to spread malware and crash systems.

    It'll be especially interesting to see how a user interface can violate 42 MS patents, especially with the above caveat that something must be innovative. Tabs, buttons, control panels, menus, silly images on menus, etc are NOT innovative in any way, shape or form.

  2. Tom Chiverton Silver badge

    SCO mark 2

    Show Us The Code.

    Really, just point at the lines in the kernel you think are yours.

  3. Anonymous Coward
    Anonymous Coward

    We've heard it all before

    Microsoft have been putting this but of FUD forward for a while now.

    They refuse to tell anyone which patents have been infringed which seems a bit odd - similar in a way to the way that SCO claimed Linux had infringed their intellectual property and when challenged their response was basically "you know what you stole"... and look how that turned out.

    So until Microsoft actually detail the patents they claim Linux infringes and those patents can be proven to be valid (which will be much hard since the KSR Int'l Co. v. Teleflex Inc. case) its all just more blustering bullshit from Redmond.

  4. SImon Hobson Silver badge

    Have they heard of "put up or shut up" ?

    Since they clearly think they know exectly what infringes on what then they should have no problem making this information public. If they don't then it's obvious that they can't substantiate their claims.

    Now what was that other company that made IP/patent infringment claims against Linux and Open Source ... oh yes, SCO, and look what's happened to them.

    At the moment this is nothing but classic FUD.

  5. Joe

    Patents and Monopolies

    Microsoft have always been bashed with this "anti competitive monopoly" talk, now we understand how they got there - patents. If MS had not been granted so many patents then surely the open source community would not now be facing possible legal action for infringement! In the article it stated most of these infringements occur in the linux kernel - which to my understanding is the basic principals and laws of the OS, so does that mean that they cannot write and operating system without infringing MS's patents??

    I think we will hear more of this in the future.....

  6. Tom Silver badge

    Running scared

    Its like watching the school bully cornered in the playground.

    "I'm gonna beat you all up"

    Go on then - we know your just blustering but you dont dare throw a single punch as it would be so limp we'd all laugh and you'd cry!

  7. BRYN


    So the Gui violates 42 patents could we be more specific such as which Gui?




    any or all of the others?

    And Open Office Violates several others, well bugger me isn't OpenOffice a Sun systems byproduct of StarOffice? and isn't really a Linux issue. Or am i being silly?

    Its MS being blowhards again trying to discourage more and more Liux mingration from there bloated resource hogging, unsecure, failure of an OS

  8. Peter Darby

    ... lapsed patent's?

    Don't patents lapse if you don't defend them?

  9. Cliff

    It's sue

    Once cannot slander a company, but maybe there's some legal recourse somewhere if individual developers are feeling targetted under the blanket of their applications? Feel they're having their names/commercial values/etc unfairly run down and taking a (or many) small-claim-type civil actions to force MS's hand into revealing which patents they feel are violated, and allowing the developers to 'fix the problem'

  10. Anonymous Coward
    Anonymous Coward

    MS Won't Challenge

    MS won't try and go after these "violations" because they know that most of them will be re-evaluated and have prior art shown, or be challenged on the ground of novelty. So it's just sabre rattling, hoping to scare the odd company in to purchasing MS software, just in case.

  11. Glenn Gilbert

    Software patents = anti-competitive + jobs for the lawyers

    It's about time software patents were finally scrapped. They're being used as a form of imperialism by a few large companies over the rest of the world.

    It seems that software patents are being granted for the most trivial of 'inventions' which then need to be sorted out in court later. Fine for a large company, impossible for a small one.

    Glad to see the EU's taking a different stance than the madness that lingers in the US. Lets hope the whole sorry mess comes crashing down in the not too distant future.

  12. Dunstan Vavasour

    No surprise

    I'd be far more surprised if the average GNU/Linux distribution *didn't* infringe Microsoft patents. Everybody's software infringes everybody else's patents - for example, the free software bundled with a Solaris distribution will contain much of the same stuff, so presumably infringes a big subset of these 235.

    So the real questions are:

    a) Why have Microsoft aimed this broadside specifically at GNU/Linux?

    b) Why now, and not a year ago, or a year from now? The infringement hasn't just come to light.

  13. Marc

    Funny they didn't mind infringing on others' rights

    Microsoft has never minded infringing on other companies' rights. Funny how they have a problem when (they PERCEIVE) the situation as being the other way around.

    This duplicity has always amazed me - they never have to play by the rules, but get worked up over IP every time someone blinks. What's next? A Microsoft patent on 'human fingers on a QWERTY keyboard'? How about 'pixelated light traveling through LED laptop screens'? 'patent on all 110v AC computing devices' ?

    Or maybe 'patent on sudo' (no wait that's a real one of theirs I was shocked to recently hear).


  14. Anonymous Coward
    Anonymous Coward

    MS won't seek enforcement?

    That says all anyone needs to know. Patent law in the U.S. requires you to enforce your patent or you lose it., period.

  15. Neil Lewis

    SCO Vs IBM & MS Vs "Linux" are not the same thing

    While there are similarities, there are also important differences. Primarily SCO's arguments were mainly about copyright while this is about patents; a completely different issue.

    This is precisely why FSF etc. have been warning us all about the evils of software patents for ages. The problem with a patent is that it can be violated just by implementing a similar procedure. The code doesn't have to be similar if it achieves the same result.

    To make a literary comparison, it's like the Tolkein estate patenting epic adventures involvng mythical creatures pitting good against evil. Even Harry Potter would be in danger of violating that, despite obviously being a completely different piece of work.

    Leaving that aside, I'd guess that the FUD will continue, countered by similar from IBM and others showing that MS has infringed on their patents. That's the way software patents have always been used - to keep squash the little guy who doesn't have a patent arsenal to use in retaliation. Bu in his case, FUD is all it can ever truly be so long as IBM and the others keep to their pledge to defend Linux, because each and every one of the "little guys" in this case is using the self same "violating" stuff.

    It's also worth bearing in mind that we're mainly talking about the US here. Most other parts of the world have resisted the idea of software patents anyway, rendering the MS claim a total non-issue.

  16. Dillon Pyron

    Software patents

    Software patents have got to go. For the most part they patent obvious ideas and frequently fail to cite prior art that might invalidate the patent.

    The good people of Marshal, TX are becoming IP savy. I wonder which court these fiends will choose next.

  17. call me scruffy


    Notice that they're talking about 235 instances, not 235 patents. So the 15 violations by email programs for example, could be 15 programs all falling foul of the same patent... Probably something like "searching a history as keystrokes are typed".

    As for "silly pictures in menus". (And donning my anorack) RISC OS has had support for icons within menu widgets since version 3 (1992). Prior Art m'Lud!

    And there it hangs, I suspet that Microsoft do currently have patents for all 235 claimed violations, and so their statement is neither incorrect, nor libellous. However it could be that some of those patents are as well built as a VB app on a friday afternoon, as such the "full" version of the statement would be "235 infringments that we won't persue, because we'd just see the patents overturned."

  18. Andy Gallagher


    If Microsoft knows of exact patent violations, doesn't it have to bring them to court right away, as soon as it believes that it's IP is threatened?

  19. Anonymous Coward
    Anonymous Coward

    Patent vs Copyright

    I think there might be more than a little confusion over the difference between patent infringement and copyright infringement. I'm certainly confused, which means that Redmond's FUD campaign is definitely working.

    I was thinking along the same lines as the poster above who said 'show us the code' ... but then I got thinking, thats an accusation of literally ripping off existing code - which surely would be a copyright breach.

    As we know, the Linux kernel was written from scratch, so I'm certain that can't be the case. Unfortunately however, the Linux kernel also has a FAT file system module, among a couple of others. Perhaps this is where the patent infringement comes in?

    Although in use since '76, Redmond finally got around to patenting FAT in '96. That patent was re-examined and rejected in 2004 (a 'non final' decision) by the patent office...

    ...but subsequently seems to have been reinstated in 2006 (what sounds like a 'final' decision)...

    You can download the specification for the FAT file system here: long as you agree to a "royalty free" license agreement which allows you to "make, have made, use, import, and directly and indirectly, offer to sell, sell and otherwise distribute and dispose of portions of products which comply with the Specification in unmodified form.".

    But hang on - as long as the Linux FAT compatibility kernel module complies with that specification, M$ have issued a covenant not to sue. *now* I'm really confused.

    ...ah, now theres some really interesting cunningness written into the agreement further down - the "covenant not to sue" provided by the license no longer applies should you decide to sue M$ for patent violations yourself...

    Now I'm wondering if the M$ legal eagles have been preparing defenses in advance to create a cover under which their developers can work in patented OSS territory.

    This all really does suck bigstyle(1). As has been protested by anti-software-patent campaigners for some time, these patents are destined to make it economically impossible for independent or small business software developers to write any new software for fear of unknowingly infringing a big company patent. The simple accusation of doing so can put you out of business in a blink.

    (1) All the more when you consider that Gates and Allen didn't even invent either FAT, or even DOS for that matter.

  20. Rob

    US vs European Patents

    I think there is a lot of confusion about patent law, so allow me to cut through the fog and clarify a few points with what little I know about it:

    #1. European patents have to be legally contested before they are granted in order to prove that the concept at hand is genuinely original. This can take as long as 15 years in some cases, which gives the applicant 5 years of clear exploitation. This is due to the 20 year lifetime of a European patent being back-dated to the time of application. Thereafter, infringement court cases are relatively short and to the point, as the patent-holder's case is invariably water-tight. Most are settled out of court in fact.

    #2. US patents are granted almost immediately, the idea being that they can be contested later in court if the holder believes that an infringement has occurred.

    So, what I'm trying to say is that if ANY US organisation states that another party has violated their patent, until it is proven in court they may as well say that "their dad can beat up the other organisation's dad".

    It's utter conjecture.

    - How many hundred patent violations? My arse.

  21. Michael H.F. Wilkinson

    Algorithm = mathematical expression = unpatentable

    In a very good paper by Ben Klemens "Software patents don't compute" in IEEE spectrum July 2005 (try finding it using Google), it is clearly stated that current (US, not EU (yet)) patent law is in blatant contradiction with itself, because it wishes to allow software patents, AND AT THE SAME TIME claim mathematical formulae are not patentable (because that would be silly). The reasoning is simple:

    1. Assume software patentable

    2. ANY software is expressed in algorithms

    3. ANY algorithm can be expressed in a suffciently complex lambda calculus expression.

    4. ANY lambda calculus expression is a mathematical formula

    5. ANY mathematical fomrula is unpatentable


    I have yet to see a refutation of this elegant proof.



  22. A J Stiles

    No software patents in EU

    Those of us who live in the EU are spectacularly unaffected by any of this.

    Software is explicitly excluded from patentability in the EU (and, in fact, in most countries outside the USA). The EU also has a principle preventing retroactive enforcement of a new law, i.e. you can't be punished for something you did before it was banned.

    What this means is that even if the EU does vote to allow software patents one day, the holders of software patents will have to re-apply for them in the EU (since they could never have been valid in the first place, or else there would be no need for a new law allowing software to be patented). And there will be plenty of prior art -- in the form of software which managed not to violate those patents only by virtue of the patents' non-validity -- to block them.

    Also, patents expire after a saner amount of time than copyrights. We only need to drag the row out for 20 years at most, after which it will all be irrelevant.

  23. Karl Lattimer

    Easy fix

    When MS come knock knock knocking at your door, as they apparently have and will according to this thorough article

    Then all you've got to do is take out your check book. Fill out the usual details and write a nice fat 0 in the amount payable field.

    "Thats right, Mr Ballmer, we didn't pay for the software perse, we paid for the service those wonderful engineers do making the software cuddly and installable. How many patents does that infringe on, erm... none you say. Oh well Mr Ballmer, try selling more copies of Vista, I'm sure public confidence in it will grow after service pack 3"

  24. Paul

    I sense fear and confusion

    You don't have to enforce patents to avoid losing them - you may be thinking of trademarks there.

    Software patents exist in the US and parts of the EU. There are periodic attempts to "harmonise" EU rules to "clarify" what software can be patented, EU-wide. A previous attempt failed, but the issue is working its way through the system again.

    Many software patents are trivial, obvious, or have undisclosed prior art. If you're rich enough, and not in a hurry, you can often get them invalidated through the courts. But not always. A number of the MS patents may fall into this category.

    This is not about lines of code in the kernel or in applications - it is about any code at all that does some very specific things that MS though of first (or patented within 6 months of someone else mentioning the idea).

    In some cases, it may be possible to achieve the same effect in a slightly different way, and avoid the patent. Or not. It depends on the details, which of course we don't have. That's where the FUD comes in.

    Some enlightened countries remain free of software patents. But if you're providing services via the web, no doubt some overpaid lawyer will try to argue that you're infringing in the US. They seem to claim jurisdiction pretty much everywhere these days...

  25. Gerald Stanley


    If MS isn't going to enforce the infringements and violations on their patents, then what is the point of saying anything at all about it??

    It seems that they have not considered, or are oblivious to, the fact that people already have a bad Microsoft taste in their mouth after witnessing all of the blatant copying of other companies’ ideas or MS would have kept their mouth shut about Linux. Personally, this just makes me less likely to support or use MS products in the future.

    Another laughable comment from MS legal team about the open source developer having to play by the rules of the business - I wish MS would play by those rules... Oh, but then they wouldn't have any features or "novel" ideas for their OS!

    MS sucks.

  26. Eduard Coli

    To shill or not to shill

    The steam must be running out of M$'s favorite sock puppet company SCOs penguin stomping crusade.

  27. Chris


    "If Microsoft knows of exact patent violations, doesn't it have to bring them to court right away, as soon as it believes that it's IP is threatened?"

    No. Microsoft doesn't have to do anything. But if they sue, they would of course have to inform the jury of the specific patent violations they believe to have occurred.

  28. Chris

    Patents do not need to be defended.

    "Patent law in the U.S. requires you to enforce your patent or you lose it., period."

    That's false. Patents simply expire at the end of their term or if the owner fails to pay the required fees. Other than paying the fee, no other action is required of the owner.

  29. shawn hill

    If Software is Patent-able at all ...

    I wonder how many patents that Microsoft's code is infringing.

    I'm willing to bet that the 235 possible patent infringements in open source code pales in comparison to the number of patents that Microsoft has usurped into its code from Apple, et al.

  30. jen b


    Can you patent the "air"? This is no different than trying to patent algorythms, it just cant be done!

  31. Peter W


    have you ever known Microsoft NOT to prosecute and play every trick they can if a competitor is doing anything Microsoft can sink their teeth into?

    It's purely and simply a FUD trick.

  32. Douglass Clem

    unconventional battle tactics

    The reason Microsoft doesn't come out and openly attack OSS with these patents is because they know they cannot. In a fair fight, OSS would win (SCO anyone?), and Gates et al. know this. So instead, they are waving around the unspoken threat of IP infringement, and scaring well-meaning companies into the Microsoft tax. As long as MS defines the rules of the engagement, they have the upper hand. I believe someone needs to force them out in the open, and make them reveal the so-called "infringements" in a court of law. I'm no lawyer, so I don't know how this could be accomplished, but I believe it would be best for the OSS community.

  33. Summa

    Forestalling estoppel defense

    "If Microsoft knows of exact patent violations, doesn't it have to bring them to court right away, as soon as it believes that it's IP is threatened?"

    What MS *does* have to do is put alleged violators on notice, even if it doesn't file a claim again them. Otherwise, they run afoul of the 'equitable estoppel' defense.

    'Equitable estoppel' is a tricky bit of legal business, but a key element says that a patent holder can't lead an alleged infringer to believe that the holder won't assert a claim against them, only to jump on them at some point down the road. Putting an alleged violator on notice regarding a patent violation is a way of preventing the violator from asserting this defense if and when you decide to make a claim.

  34. daniel

    Well, if IBM can hold patents ...

    to a shopping cart and electronics catalogue, I need to go and push some patents for myself.

    How about

    "Electronic and electro-mechanical method used for counting and comparing between multiple values enabling a comparison of these multiple values until an equality is reached.

    Therefore, Please send me $1 per year (or $10 000 for an unlimited site licence), or 1% of your software earnings, whichever is larger each time you use a for, foreach, while or do loop in your code.

    Then again, it could be worse: HP could have patented the 4 mathmatical operations (+ - / *) for exclusive use on our calculators....

    When will good common sense break out?

  35. Marc

    Call their bluff AND turn the table on them!

    Someone needs to FORCE them to bring all of their details to the table so the world can see what a weak/nonexistent case they have.

    If someone was slandering/libeling an individual, there are legal processes for making them stop. The same should now happen with regard to the F/OSS community which should start a HUGE class-action lawsuit, that accrues high interest daily, until the defamatory allegations are resolved or brought down to such a tiny number that it doesn't matter much to most parties involved. They continue to propagate this damaging speech which CAN, and SHOULD, be quantified by all of the damaged linux vendors listed above - lost revenues, damaged customer relationships, etc.

  36. Lou Gosselin

    There's no doubt...

    Of course Linux infringes on patents, just as all software does.

    It seems the readers above don't understand the difference between between copyrights and patents.

    SCO case involved copyright infringements (or stealing source code).

    Software patents on the other hand involve "stealing ideas" and programming algorithms, regardless of who writes the source code. Patents can be impossible to avoid.

    Of the top of my head Linux is known to infringe FAT32 Long File Names patents. Of course this is the defacto file system used on flash drives, cameras, etc.

    I think MS clamping down on Linux for (factual) patent infringement would be a sort of "nuclear option". There would be such a backlash bringing this issue into the public that it would weaken the entire case for software patents. Instead Microsoft must continue to find ways to quietly profit from software patents while maintaining the pro-patent status quo.

    This assuming of course Microsoft likes software patents. MS has also been the victim of several harmful patents against it.

  37. Maligned Truth

    200 million rebels

    At least 200 million citizens of the planet contest the large corporate stance that everything can have a patent, even ancient Yoga techniques, individual DNA sequences, and commonly used concepts, which they purport must be defended in the courts, at our expense!

    They have it backwards, but, they say 'nevermind, we'll go to market with our assertions, and stomp the individual users and customers in court!'

    What happened to "the customer is always right"!? The large corporations wonder what causes the flatlined sales of desktops for 8 years, and are blind to the 'big picture' of living the "Golden Rule", not the "Gold Rules"!

    Reason #59,437 that I and all my friends, run and other FREE and Open Source distros, at and

    Lawyers must be in charge, over there, as is evident from the stupidity of the marketing plan!

  38. jmjjg

    So they won't list the patents, right ?

    So it seems that Microsoft will never make public the list of "infringed" patents ( ).

    Let's just do it ourselves:

    * Linux GUI: 65 patents

    - Virtual desktop manager ( )

    * E-mail programs: 15 patents

    - Technique which utilizes a probabilistic classifier to detect "junk" e-mail by automatically updating a training and re-training the classifier based on the updated training set ( )

    * Other assorted FOSS programs: 68 patents

    - Administrative security systems and methods ( )

    I know there are only three here, but if people would start doing that on a wiki or something, ...

    1°) list possible patents infringements

    2°) then research for prior art

    3°) ?

    4°) success

  39. Jeff Henager

    What about Lotus 1-2-3 and WordPerfect?

    Wasn't that 'intellectual property'?

    If so, shouldn't Microsoft be willing to pay royalties to those companies for every copy of Microsoft Office ever sold?

    That should shut Ballmer's trap for a while.


  40. Giles Jones Gold badge

    Prior art

    Many of these patents are prior art and are friday afternoon patents which should never have been granted.

    Much of Microsoft's claims are on things like FAT, SMB which originate in other operating systems.

    Microsoft can go after the vendors of Linux, but you aren't going to stop Linux users who pay nothing for the OS and share it.

    Linux is too big to be stopped, Microsoft has some patents up its sleeve, unfortunately for them IBM and others have a lot more.

  41. Mike Silver badge

    Gates and FAT

    A previous poster asserted that "Gates and Allen" didn't invent FAT.

    IIRC, "FAT" is simply the file-system that was part of the "standalone" MSFT Disk Basic, and was indeed "invented" (to the extent that means anything) by Bill Gates himself. Patterson asked for (and got) permission to use it in his CPM-clone QDOS, for which MSFT later purchased the "one customer exclusive", and the rest is history.

    The original CPM filesystem was more like what we would today call "extent based", and arguably superior, but they didn't want to open themselves up to IP issues... :-)

    Further pedantry: I also believe that the "FAT Patent" in question is not on the basic FAT filesystem, but on the "long filenames" kluge that was almost certainly developed at MSFT, albeit not by Gates or Allen. IANAL, but if you are OK with 8.3 filenames, you can probably rest easy.


  42. Morely Dotes

    Common Sense?

    @ daniel: "When will good common sense break out?"

    When all the thieves and lawyers (oh, did I say something redundant?) are dead.

  43. Anonymous Coward
    Anonymous Coward

    aww c'mon guys... youl learn to love vista - it sure does look purdy.

    ha ha, this is probably a boon for my new found socialist leanings...

    if anything is going to be able to smash the system it will be microsoft's lousy OS that'll bring the worlds corporations to it's knees.

    from wallstreet to the london stock exchange - buy, buy sell, sell , reboot! reboot!

  44. Demian Phillips

    SCO clarification

    If you watch closely, SCO started saying the IBM case was about "Trade Secrets", that didnt fly so they said "no wait, it's about Patents" that also didnt fly so then they said "It's really about copyright infringment and breach of contract".

    Thing is the contract breach came from SCO revoking the contract (they are not allowed to) with IBM based on the Trade Secrets claim that they dropped. So how can you claim damage based on a charge you admit is not the charge.

    It hurts if you start to think about it much.

  45. Anonymous Coward
    Anonymous Coward

    I copyrighted the word patent

    I charge .10 cents (USD) per use... I take paypal... So let's start seeing some cash folks... And for the pricks at MS, I'll give them a special bulk license at .12 per use.

  46. Anthony

    Not sure if this is the intention of the article or MS

    As per previous posts, you could probably find patent infringement in all SW. I think you would also find most, if not all, major SW companies are involved in "discussions" over IP (Intellectual Property) with their competitors.

    People obviously see MS and get a bit "tired and emotional", but legal battles over IP are standard practice (not just in the SW business). The interesting question is how the Open Source community will deal with IP issues?

    I can't see how Opens Source is immune to IP. Love to see posts from anyone who knows ...

  47. Anonymous Coward
    Anonymous Coward

    Microsoft pirates ahoy, Cap'n...!

    > The interesting question is how the Open Source community will deal with IP issues?

    Anthony, you have missed the most important point: the Open Source community is just that - a community. There is no corporation for MS to sue, no legal entity, no shareholders to spook to force a policy u-turn. We are just a collection of individuals.

    So MS can't bully the OS community in the same way that it terrorises and bullies others (except of course, who spanked MS big style in the courts when the Microsoft corporate pirates stole dozens of their patented streaming technologies). Cap'n Gates et al will just have to start suing Aaron Aaronovitch and finish with Zyzal Zzanawe and undertake the biggest witch-hunt of the world's population ever seen... oh, except of course that the USA's attempt to revise the definition of their WTO commitment means that soon they won't be able to enforce a single one of their patents outside the US... see:

    The DVD presses in the Far East are limbering up to whack out billions of pirate copies of XP as we speak... (well, they wouldn't be stupid enough to press copies of Vista now, would they?)... :-)

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