CyberTech Rambler

May 16, 2007

If Microsoft overplay its hand, it may be forced to do a deal with OIN

Filed under: Uncategorized — ctrambler @ 5:57 pm

OIN or Open Invention Network, an organization that a lot of people (including me) once dismissed as irrelevant, is starting to show its teeth and one day may prove decisive in the Microsoft vs open source battle.

OIN is an organization which is the repository of a number of patents donated by companies for the defense of popular open source application. They enters into cross-licensing agreements with companies. Oracle did it.

Mary Jo Foley reports that Microsoft is trying to “claim” the high ground by stating that Microsoft will license any necessary technology for their businesses and customers. There is no reason to doubt Microsoft will not do it. Is there any patent in OIN that Microsoft infringes, extremely likely. If it wants the moral highground, Microsoft should cross-license with OIN. That way, both the unaccounted liability of Microsoft products and Linux will go away with benefits to both partyies.

It is possible that OIN holds several patents that Microsoft can be forced to sign a cross-licensing agrement. If the Redmond company is ever forced to so, not only  all the FUD around Linux infringing Microsoft Patent will disappear into thin air, Microsoft will have to admit defeat and worse, it acknowledge that it infringe on others IP. OIN is simply an example. There are definitely several other patents that staunch open source supporters own which Microsoft will need to conduct its business. It does not take many patents, just one that is valid and Microsoft infringes on to force it to sign any cross licensing deal with open source.

Why did not OIN act proactively? The same reason why Microsoft dare not sue. The most likely outcome is after an expensive lawsuit, both are found to be infringing each others patent and force to sign a patent truce agreement. Both sides will have spent countless developer hours in the lawsuit and nobody wins. The classic Mutual Assured Destruction (MAD) scenario.

Is “Claiming that one will obtain the necessary patent licenses” the only moral high ground? Nope. By implication, this means transfers of something call money from you to another. A better moral high ground will be not calling the kettle black.

Will all these hot air around patents help Microsoft in any future litigations? Quite the contrary. Any defendant will tell the court that I did ask for clarification, but the plaintiff show bad faith by refusing to tell me what the problem is before suing me. The plaintiff’s claim of long term violation  is self-inflicted because it did not want to give me a chance to remedy the situation even though I asked it to. Looks like Microsoft’s people is doing a Darl McBride.

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