Under pressure arising from comments made by Microsoft’s Horacio Gutierrez and Brad Smith in an Fortune magazine article earlier this week saying that Open Source software contains 235 Micrsoft patents, the company has released a statement that it does not intend to resort to litigation in an effort to halt the growth of Open Source software. So why would they highlight an issue and then when asked to state specifically which are the patents in question they respond, “We’re not going to have a discussion publicly with that level of detail.”
The answer is simple. If they publish them it is likely that most of them will be thrown out by the U.S. courts as invalid. This became much easier recently, when the U.S. Supreme court made it easier to legally challenge individual patents and get them invalidated. This is because most software patents have been granted without due consideration and aren’t actually valid for many reasons. Patents have been grantly for things that are patently unpatenable.
Once this weeds out the likely majority of patents - Open Source developers will endevour to work around what patents, if any, remain.
So, back to the question, why would Microsoft highlight a meaningless question? Well, to bring up the issue in this manner creates a degree of uncertainty in the minds of certain business owners - however misplaced. Such people must weigh up risk every day and anything that they perceive adding risk to their business they will avoid. This will take two forms, one is to avoid Open Source software and stick with closed solutions. But this is becoming increasingly difficult as it is making more and more business sense to deploy Open Source solutions every day. The other is pay royalties to Microsoft for these (vaguely) alledged infringing patents. This is a sad situation because paying ‘money for nothing’ is money that you could otherwise use to grow your business.