Microsoft Gives OIN the Cold Shoulder

By Peter Galli  |  Posted 06-28-2007

Microsoft has no current plans to join the Open Innovation Network, a move that some in the free and open-source community have suggested would benefit them both.

OIN is an intellectual property company that was formed to acquire Linux-related patents and share them, royalty-free, to any organization that agrees not to assert its patents against Linux or its applications.

With member companies including IBM, NEC, Novell, Philips, Red Hat, Sony and Oracle, OIN represents a considerable patent litigation threat to any company that might try to take Linux to court.

David Kaefer, Microsoft's general manager of Intellectual Property and Licensing, told eWEEK June 27 that the company had spoken with OIN member companies in the past and already had patent agreements in place with several of them, including IBM, NEC and Novell.

"We are always evaluating licensing opportunities but don't have anything specific to say about OIN. However, we remain committed to building bridges within the industry," he said.

That response is a little more vague than that from a Microsoft spokesperson who told eWEEK previously that "while Microsoft actively participates in a wide variety of industry organizations, the company has no plans to join the OIN at this stage."

But an OIN spokesman confirmed to eWEEK June 27 that it has had no discussions with Microsoft about a patent agreement.

While Microsoft has been getting individual Linux and open-source companies like Novell, Linspire and Xandros to sign patent deals with it, entering into an agreement with OIN would indemnify all Linux users as Microsoft would have to agree not to assert any of its patents against the open-source operating system.

Microsoft has not specifically said it has any plans to go after Linux legally, but the Redmond software maker recently said that free and open-source software was infringing on 235 of its patents.

Click here to read more about which open-source software Microsoft says is violating its patents.

The idea of a patent agreement between Microsoft and OIN first emerged during a panel discussion at the annual Open Source Business Conference in San Francisco on May 23, where the question of whether Novell's deal with Microsoft was good for open source was being debated.

Panelist Allison Randal, an open-source developer and evangelist for O'Reilly Media, suggested that Microsoft should work with the OIN on a broad patent agreement.

The controversial patent agreement and covenant not to sue between Novell and Microsoft looked like "a standard interoperability agreement, with an agreement not to sue one another's customers. Microsoft did not gain any additional power over the community with this deal. If they had any power with patents before the deal, they still have it after this deal. Nothing has changed," she said.

However, an additional warranty to give parties safety from attack is perfectly legal under the GPL, and if this deal was like an additional warranty, Microsoft should work with the OIN on a broad patent agreement, she said.

Fellow panelist Jonathan Corbet, executive editor of LWN.net and an active kernel developer, was enthusiastic about that possibility, saying it would be "a fantastic thing if Microsoft worked with the OIN, as it would also improve the patent regime in this country in Microsoft's favor."

Read more here about why open-source developers want Microsoft to work with OIN.

But, while Microsoft has poured cold water on any such move, at least for the time being, Novell, which has been strongly criticized for making a pact with Microsoft, is enthusiastic about trying to end the patent standoff between Redmond and the open-source community.

Novell spokesman Bruce Lowry told eWEEK that OIN will license its patents to anyone who agrees not to assert their patents against other OIN licensees with respect to Linux.

"This offer, of course, has been open to Microsoft and everyone else since OIN was formed. We can't speak for OIN, but we believe OIN would be open to all ideas to alleviate undue concern about Linux and patents. Novell certainly is," he said.

Jerry Rosenthal, the CEO of OIN, confirmed that, telling eWEEK that it was happy to license its patents to Microsoft as long as the software giant agreed not to use its own patents against the Linux system.

Oracle became an OIN licensee in March 2007. Click here to read more.

Rosenthal said he was open to such a discussion, although there has, as of yet, been no communication between OIN and Microsoft on this front. "Whenever they [Microsoft] are ready to join, we are more than happy to have them as a licensee as we are trying to build an ecosystem of companies that agree not to use their patents against Linux," he said.

But, should any company decide that it wanted to go after Linux, OIN had built up a decent portfolio for defensive purposes. "We have no intention of using this offensively, but we are prepared to use it defensively if we have to," he said.

He noted that no one really knows if any of Microsoft's actual patents are being infringed, since the company has declined to cite specific instances.

"Once you understand the problem, you can then find a solution to it. At this point though, all we have is them spreading FUD [fear, uncertainty and doubt] rather then telling us what the problem is. I find that very puzzling," Rosenthal said.

But some open-source developers like Randal disagree with that view, and do not want to know which of Microsoft's patents are allegedly being infringed. "As the architect of a virtual machine for a dynamic language, I don't want to know, because if they say it publicly, then we have to start taking legal action," she said.

Read more here about why Microsoft sees no conflict between its stance on patent violations and its attempts to build bridges with the open-source community.

However, Rosenthal, who was the vice president of IBM's Intellectual Property and Licensing business before joining OIN, says it's standard industry practice for a company that believes its intellectual property is being infringed upon to hold open discussions with the alleged infringing company, detailing the patents and why it believed they were being infringed.

These discussions are also not usually secret or subject to confidentiality agreements, he said.

Horacio Gutierrez, Microsoft's vice resident of Intellectual Property and Licensing, countered that the software giant does disclose which patents are being infringed, but only during private licensing discussions with companies that are looking for good faith for ways of resolving the situation.

"We walk through a number of exemplary patents and go as deep as they want us to go. Our experience has been every time we've done that, it doesn't take companies a long time to figure out that there is an issue here," he said.

Microsoft prefers to have private, collaborative discussions with companies interested in using its technology in their products, he said, noting that "as a business, we are interested in doing licensing deals with other businesses. This is standard practice in the industry followed by IBM, HP and others."

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