As I've noted many times, one of the biggest threats hanging over open source is patents, because of the way trivial but indispensable software techniques have been patented in some jurisdictions (mostly the US). Things are made worse by the fact that vague threats can be made in this area, for example this famous assertion in 2007:
Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.
It's striking that Microsoft has never said exactly which patents it thinks free software infringes upon, although not surprising. If it did, it would be possible to see whether there were any likely infringement and, more damagingly for Microsoft, to look for prior art or other grounds for those patents to be revoked. By keeping everything as vague accusations, Microsoft gets the best of both worlds: it is able to imply that free software is in big trouble, but without running the risk of being proved a paper tiger.
That's what makes Barnes & Noble's principled stand against Microsoft's patent bullying so important. As PJ writes on Groklaw:
Barnes & Noble has done the world a tremendous favor, by pulling aside the curtain and revealing Microsoft's patent campaign tactics against Android in lurid detail.
It reveals the assertion of "trivial" and "invalid" patents against Barnes & Noble and some shocking details about an "oppressive" license agreement that would have controlled hardware and software design features that Microsoft presented, thus limiting to what degree Barnes & Noble could offer upgrades and improved features to its customers if it had signed it, features it says none of Microsoft's patents cover. Microsoft worked so hard to keep it all secret, and I think you'll see why. It's ugly behind that curtain.
Ugly indeed, as the accompanying documents from Barnes & Noble also on that Growklaw post make clear. Don't miss the tale of how Microsoft tried to get Barnes & Noble to sign a broad non-disclosure agreement to keep all this embarrassing stuff from the public gaze – and failed. But the real revelation is Exhibit D, which spells out the patents that Microsoft is asserting against Barnes & Noble. Here they are in all their unbelievable glory:
I. '372 Patent (Web Browser Background Image Loading)
The '372 patent was filed April 18, 1996. Very generally, the patent relates to an outmoded system for retrieving an electronic document like a webpage that includes an embedded background image, which may have a bearing on very old web browsers connected to the Internet via slow, dial-up connections, but has little application in the context of improved, modern Internet connections....
Technologies for the dialup age? Yup, totally relevant to Android...
II. '522 Patent (Operating System Provided Tabs)
The '522 patents was filed December 13, 1994. The patent relates to a single, simple tool provided by an operating system (such as Windows) that allows applications running on that operating system to have a common look and feel. Since operating systems provide many such tools, the patent amounts to nothing more than a trivial design choice.
A patent for "a common look and feel"? How low can the USPTO go?
III. '551 Patent (Electronic Selection with "Handles")
On its face, the '551 patent purports to claim priority back to a November 10, 2000 filing date. Generally, the '551 patent relates to another simple and trivial feature that is not only disclosed by numerous prior art references, but is certainly not central to an operating system like Android — selecting or highlighting text or graphics within an electronic document. The patent provides that a user selects a word or phrase, for example, by tapping on a touch screen display or clicking with a mouse. Such a selection may be shown by highlighting the selected word or phrase. The user is presented with "selection handles" on one or both ends of the selected areas. These "selection handles" can be moved by the user to highlight more or less text or graphics....
Another utterly trivial patent that would be obvious to every reader of this blog, their children, their parents and probably pets too.
IV. '233 Patent (Annotation of Electronic Documents)
The '233 patent was filed December 7, 1999. Like the other Microsoft patents, the '233 patent relates only to one small feature that has long been present in the prior art and is not central to Android or any other operating system. More specifically, the patent generally relates to a method for capturing annotations made in an electronic document (like an electronic book), without changing the electronic document itself....
Yeah, annotations, deeply original that.
V. '780 Patent (Web Browser Loading Status Icons)
The '780 patent was not filed until May 6, 1997, long after the first web browser came to market. In addition to being late to the game, the patent is directed to a very simple and obvious feature — a temporary graphic element or status icon that is displayed to indicate that a hypermedia browser (such as a web browser) is loading content.
Words fail me.
However, the Barnes & Noble filing goes further than simply listing these patents: it also provides detailed information about prior art or other reasons why they are all invalid. But even if they were valid, they are pathetic in the extreme. That Microsoft is using such flimsy weapons against Barnes & Noble exposes how its whole approach is a sham.
It is obviously hoping that the sheer effort and expense of fighting them in a long-drawn out court process will persuade manufacturers simply to roll over and license them as the easier option. And indeed, that has worked with companies like HTC and Samsung signing up, to their eternal shame.
Barnes & Noble, by contrast, emerges with considerable honour here, since it refused to buckle, and as a result is able to provide us with the first real glimpse into Microsoft's new strategy as a patent troll following the continuing failure of Windows Mobile in the market. And that is a key factor, as Barnes & Noble points out in its submission to the FTC (also on Groklaw), where it calls for a full anti-trust investigation into Microsoft's behaviour:
It is clear from Microsoft's actions and statements that its issue is not with Barnes & Noble, but instead is with the Android operating system developed by Google, which has achieved in a short period what Microsoft, with all its resources, has failed to do over the past years. Namely, to develop a mobile operating system that would be embraced by both mobile smart device manufacturers and by the public, and for Microsoft to eliminate competition. Instead of directly addressing this issue with Google, Microsoft has decided to target Barnes & Noble, who merely incorporates the Android operating system into its eReaders.
The filing of the actions also included a press release by Microsoft and blog entries by Horacio Guitierrez, Microsoft's Deputy General Counsel, suggesting that it is a foregone conclusion that Barnes & Noble and other Android operating system users must take a license from Microsoft and pay it royalties is disputed by Barnes & Noble, just as other handheld device manufacturers have disputed this assertion. There is no legitimate basis for Microsoft's assertion of dominance over the Android free-source operating system which was not invented at or by Microsoft, but instead was developed in large part by Google.
The suit and ITC actions filed by Microsoft against Barnes & Noble and its suppliers is more akin to the conduct of what has come to be known as a "Patent Troll" than to the actions of an innovative R&D-based high-tech company. Microsoft in apparently seeking to dominate the operating system marketplace, serves no public interest, and will instead serve only to stifle innovation and competition.
Over the past year, Microsoft has aggressively worked to force companies manufacturing products that use the Android operating system to take a prohibitively expensive license to Microsoft's patents. As Microsoft is in the market for smartphones and tablets, these licenses raise competitors' costs and reduce their ability to compete with Microsoft's products, such as smartphones using Microsoft's Windows Phone 7 operating system. Barnes & Noble, a small player in the eReader market, could not agree to Microsoft's extortionate license (and also does not believe the infringement claims to be valid), and when we refused to pay, Microsoft filed its lawsuit.
Again, as Barnes & Noble rightly notes, this is not just an attack on Android and Google, but on open source itself:
Simply put, Microsoft is attempting to monopolize the mobile operating systems market and suppress competition by Android and other open source operating systems by, inter alia, demanding oppressive licensing terms directed to the entirety of Android, asserting this dominant position over Android on the basis of patents covering only trivial design choices and entering into a horizontal offensive patent agreement with Nokia.
Instead of focusing on innovation and the development of new products for consumers, Microsoft has decided to invest its efforts into driving open source developers from the mobile operating systems market. Through the use of offensive licensing agreements and the demand for unreasonable licensing fees, Microsoft is hindering creativity in the mobile operating systems market.
Through the use of oppressive licensing terms that amount to a veto power over a wide variety of innovative features in Android devices of all kinds, as well as its prohibitively expensive licensing fees, Microsoft is attempting to push open source software developers out of the market altogether.
That is why the decision of Barnes & Noble to stand up to Microsoft's attempts to cow it are so important: at stake is the future of open source in the mobile and tablet space. As I've written elsewhere, Google must take some of the blame for the present parlous situation, where Microsoft can claim over 50% of Android devices now carrying patent licensing fees. Google should have offered indemnities to manufacturers using Android from the start in order to prevent them signing up with Microsoft just to make the problem go away. Failing to do so was a huge blunder, and calls into question Google's strategic ability (was it so hard to predict that companies would start suing Android in some way?)
Now that Barnes & Noble has shown some backbone, Google must do everything it can to support the company and its call for an anti-trust investigation into Microsoft's behaviour here; if it doesn't, the Android ecosystem, and with it open source, may be seriously weakened by these kinds of patent attacks.