Microsoft's Patent Strategy Made Patent

At the end of last year, I wrote about the great service Barnes & Noble had performed by drawing back the curtain on one of Microsoft's patent lawsuits. One of the reasons that Microsoft has settled on patents as a way of attacking open source...

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At the end of last year, I wrote about the great service Barnes & Noble had performed by drawing back the curtain on one of Microsoft's patent lawsuits.

One of the reasons that Microsoft has settled on patents as a way of attacking open source is that it can do so through innuendo. It doesn't have to prove that Android, for example, infringes on any of its patents; it simply points at all the companies that have taken a licence from Microsoft based on the claim that it does, and then uses that as suggestive evidence that it must be true.

But since we know nothing about the terms of those deals, it might even be that Microsoft is paying its licensees more for reciprocal rights than it receives. The net effect would then be Microsoft funding companies to go along with the "Android infringes on Microsoft patents" story in return for these kinds of deals. Indeed, companies would be crazy to refuse such an offer, so you can't really blame them.

That's what made Barnes & Noble's stand all-the-more remarkable. Even better was the fact that Microsoft somehow botched the NDA process, allowing Barnes & Noble to reveal which patents were being asserted against it (and they turned out to be risibly weak.)

Barnes & Noble was obviously a real thorn in Microsoft's side, so it came as no huge surprise to learn in April of this year that the two companies had formed a "strategic alliance" that saw Microsoft investing $300 million in a new subsidiary of Barnes & Noble. And then there was this:

Barnes & Noble and Microsoft have settled their patent litigation, and moving forward, Barnes & Noble and Newco will have a royalty-bearing license under Microsoft's patents for its NOOK eReader and Tablet products. This paves the way for both companies to collaborate and reach a broader set of customers.

It was another deal that couldn't be refused – and further evidence of how desperate Microsoft is to try to buy friends in its battle against the open source world.

Just recently we have had another indication that Microsoft has things to hide in these patent deals, as reported by Groklaw:

There's been a fascinating development in the Apple v. Samsun litigation. It is possible we'll get to see the cross-license agreement between Microsoft and Samsung that the parties announced in this press release [PDF], which mentioned that it also covered Android. If we get to see it, it would be the first time we get to see exactly what are the terms of such an agreement, because Microsoft always insists on an NDA.

Of course, Microsoft's hair is on fire about it, and so it's asking the court [PDF] to seal it.

Against the background of this long campaign to insinuate that Android infringes on lots of Microsoft's patents, we now have this blog post by Brad Smith & Horacio Gutierrez
Executive Vice President & General Counsel and Corporate Vice President & Deputy General Counsel, Microsoft, with the title "A Solid Foundation for Patent Peace". Here's a key part:

Microsoft has always been, and remains open to, a settlement of our patent litigation with Motorola. As we have said before, we are seeking solely the same level of reasonable compensation for our patented intellectual property that numerous other Android distributors – both large and small – have already agreed to recognize in our negotiations with them.

That is, Microsoft is quite open to a settlement of patent litigation provided Google agrees that Android infringes. What Microsoft is "offering" in this "solid foundation" is actually the culmination of its approach over the last year or so: getting companies using Android to sign licensing deals that implicitly admit that the code infringes on Microsoft patents – without the need to prove that they actually do.

Obviously, I've no idea what Google will do here; it might decide that it's had enough, and simply take a pragmatic view that it's easier to sign now and get it all out of the way. Or it may choose to fight on. I hope it's the latter, since acquiescence would represent a victory for Microsoft's shabby strategy of fighting open source by exploiting the broken US patent system rather than competing with it fairly on a technical basis – something it is evidently unable to do.

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