Torvalds tells Microsoft to put up or shut up

vnunet.com ^ | May 16, 2007 | Iain Thomson

[Zakeet]

Linus Torvalds has hit back at Microsoft's claims that it holds 42 patents that are infringed by the Linux kernel.

Torvalds, the leader of the project to create the Linux kernel, was contemptuous of Microsoft's claims and has asked Redmond to name the infringements so that their veracity can be challenged and workarounds found.

"Naming them would either make it clear that Linux is not infringing at all (which is quite possible, especially if the patents are bad), or would make it possible to avoid infringing by coding around whatever silly thing they claim," he said in an email exchange with Information Week.

"So the whole 'We have a list and we're not telling you' should tell you something. Don't you think that if Microsoft actually had some really foolproof patent, they'd just tell us and go, 'nyaah, nyaah, nyaah!'?"

Torvalds added that Microsoft might have patent problems of its own if the company was to expose its software to public scrutiny in the same way as Linux.

He said that operating system procedures have not changed much since the 1960s, and many companies, including IBM, have patents of which Microsoft could well find itself in breach.

Torvalds was sanguine over the possibility of legal action and believes it unlikely that anyone would get sued.

"Microsoft would have to name the patents then, and they are probably happier with the [fear, uncertainty, doubt] than with any lawsuit," he predicted.

[Western Phil]

“Linus doesn’t have enough money to pay for one cubicle at Redmond.”

Gates wants to kill Linix.

[ShadowAce]

I think most lawyers are going to laugh at them and tell them to put together a more convincing shakedown pitch.

< shrug > I don't know. I do know MS has a history of destroying companies (Remember Stac Electronics?) who didn't play ball with them. Most companies, I think, will remember those instances, and just cave.

We'll see--but I hope you're right.

[ca centered]

I looked at the price. It is actually interesting. Later I want investigate them more. You are probably correct about IBM. And a judge probably wouldn’t be able follow any argument.

[kenth]

Good for Torvalds. This is the sort of strong arm tactics by Microsoft’s legal division that has given Microsoft a bad image to too many. If Linux has infringed, then give concrete examples.

Too, the entire patent process with regards to software can be just plain ridiculous.

[cinives]

There are a lot of liberals with money ... you don’t think the DNC has been getting the vast majority of its money from $20-$50 donations, now do you ?

Most old family wealth (and a lot of new wealth) are in liberal hands. Rockefeller, Heinz, Seabrook, DuPont, Corzine, Soros, Dow, Ford, are just a few liberal families that come immediately to mind.

[cinives]

Where’s the 40% in those charts ? They’re talking web servers - Apache can run on windows, altho you’d be a fool to do so IMO.

If you consider Apache on Linux, the CHART numberS read 56% NOT 40%.

[antiRepublicrat]

This is a much more threatening situation than SCO which claim code was copied - code can be changed.

SCO is now trying to inject the concept of "non-literal copying" into the case, saying that Linux does things like UNIX does, so it still infringes. That's sort of like treating copyrights as patents.

[antiRepublicrat]

We all think lawyers suck until one saves our butt.

[N3WBI3]

of course its possible, give how crappy the USPO has been at stopping trivial ideas or those with prior art any piece of complex software out there is going to infringe!

[N3WBI3]

And it why Microsoft ought to do exactly the same thing with its patent claims. Otherwise it is nothing but gaseous emissions.

Can anyone with a legal background answer this question? Does MS *have to* try and mitigate the damage being done by any infringement?

[OrioleFan]

Maybe if Linux put bugs in the kernel, MicroSoft would have grounds for a lawsuit.

[avacado]

Microsoft will never take them to court. Just as Torvands has said, Microsoft would have to open up their own source code to experts to reveal the alleged patent infringements, thereby, most likely revealing that Microsoft has indeed infringed upon patents.

Torvands called it right: FUD! (fear, uncertainty, doubt).

[antiRepublicrat]

Here though, MS is doing nothing of the kind. They are not even identifying what parts of the Linux kernel constitute infringements, so it is not possible for Linux to stop infringing.

So, do you think Microsoft got this strategy from SCO, or do you think SCO was following the strategy Microsoft told it to use?

I am not an expert in this area of the law, but it seems to me that Linux might be able assert a defense of waiver.

The term is laches, a form of estoppel (one of my favorite legal terms since it tries to enforce fairness). The owner of the patent or copyright has a responsibility to limit the damages. Failure to do so is not looked upon kindly by the courts. Damages have been limited, and cases have even been thrown out, over companies sitting on the issue in order to let damages pile up.

Microsoft has now stated it believes Linux infringes on specific patents, but it won't tell. This will be used against Microsoft in any suit, since coders could have been working hard to design around any patents (thus stopping the infringement) from the day Ballmer started talking about patents months ago.

[theFIRMbss]

>Gates wants to kill Linix

Maybe he just wants
Linux fans to stop acting
like constant #ssh%l@s,

comparing their crap
to his crap as if their crap
was magical crap . . .

[ShadowAce]

Where’s the 40% in those charts ?

heh. I was merely posting a link to the site I believed he was getting his numbers from. While you are correct in pointing out that Apache does indeed run on Windows, you can probably make an educated guess on the percentage. As you pointed out, 56% is higher than 40%, so take away a few percentage points for those running Apache on Windows, and you have a reasonably accurate number.

[KevinB]

“I’m a lawyer” Please don’t EVER respond to my comments again. Even if they are wrong.

No such luck. I have noted your screen name and will thoroughly enjoy making you look like the ass that you are at every possible opportunity.

[ca centered]

Thanks mr attorney. I am soooooo intimidated. have a nice day

[Ernest_at_the_Beach]

A little discussion going on over here:

GNU/Free Software
Torvalds and Moglen agree: MS patent claims are 'FUD'

************************EXCERPT***********************

After reading portions of the Fortune Magazine story which contains the latest sabre rattling by Microsoft in its battle against free software, we asked Linus Torvalds, father of the Linux kernel, if he had any comment on Microsoft's claims that the kernel knowingly infringes on 42 Microsoft patents.

******************************

Torvalds replied:

Can you get a list of which ones? Before that, it's just FUD, and there's not a whole lot I can say or do. Is there prior art? Are they trivial and obvious to one skilled in the art? Would we need to work around them? We don't know, because all I've heard so far is just FUD.

If MS actually _wanted_ us to not infringe their patents, they'd tell us. Since they don't, that must mean that they actually prefer the FUD.

***************************************

While Torvalds and Free Software Foundation legal counsel Eben Moglen don't always see eye to eye, they seem to be in harmony on this issue. Moglen said last week at the Red Hat Summit in San Diego that the threat of lawsuits is often more effective than actually suing, because if you sue you have to stipulate which patents are being infringed and show that the patents are good.

[Ernest_at_the_Beach]

Googling submarine patent dispute

Turns up much including this one:

Opportunities and Pitfalls – Mining Patent Frontier "

*********************EXCERPT*********************

Enter the business method patent.  In 1998, the Supreme Court blessed a lower court ruling in the now-infamous State Street Bank decision.  The ruling put to rest the issue whether a method of doing business was patentable.  Many dot.coms, including Amazon.com and Priceline.com started filing patents on broad business concepts. 

[martin_fierro]

No such luck. I have noted your screen name and will thoroughly enjoy making you look like the ass that you are at every possible opportunity.

Just try and bill for that.