Talking points: Microsoft demands royalties for open-source software

A few media outlets (Computerworld, Fortune) are reporting about Microsoft's latest claims from Microsoft that various FLOSS projects infringe their software patents, and that FLOSS distributors should be paying royalties. While likely the best summary of why this is a non-event is the article on GrokLaw, I wanted to post a few talking points for those who want to think about this.

  • like the SCO alleged "copyright" case, Microsoft is not disclosing the patents that these FLOSS projects are allegedly infringing. (See:

  • When someone is alleged to infringe a patent there are always 3 options: license the patents, innovate around the patent, or go to court to have the patent invalidated.
  • Software being defined as being FLOSS means that you have all the rights granted in the license without additional permission or payment. It is not possible for the use of software to be royalty bearing and yet the software be FLOSS. Negotiating a Royalty-Free patent license (Offered by many companies, including IBM which is acknowledged to have the largest number of patents granted to any single company), innovating around the patent or invalidating a patent are the only options available to FLOSS projects.
  • Depending on what study you trust, and whether you only include "novelty" tests (invalidating based on prior art), somewhere between 60% and 95% of software patents currently granted by the USPTO are poor quality. Poor quality patents are those that would be invalidated by a court for not passing adequate scrutiny under the useful, novel and unobvious tests. Many Microsoft patents have already been invalidated, once they are disclosed to the alleged infringer. (See: Microsoft FAT Patent)
  • Microsoft has yet to disclose what country these patents have allegedly been granted in. We can assume the United States as they are commonly acknowledged as being the jurisdiction with the worst patent quality problem, and thus would have the most inflated number of alleged software patents. As the US Supreme Court also recently ruled, software vendors cannot be held liable for infringements that may or may not happen outside the country, so would need to deal with the fact that most jurisdictions do not grants as many software patents as the USPTO does.
  • The US Supreme Court recently made a ruling that clarified a new test for "unobviousness" which will likely cause an even higher number of software patents to be invalidated (See: Jim Rapoza on recent US Patent Rulings, A person of ordinary skill not an automaton)
  • Given the massive number of low quality patents, it is likely that all software of any complexity infringes software patents. This means while it is likely that FLOSS projects infringe currently granted software patents held by Microsoft, it is equally likely that Microsoft infringes currently granted software patents held by FLOSS distributing companies. In fact, Microsoft has been found guilty in courts of software patent infringement more than any other company.
  • Unlike copyright where infringement involves knowledge of the original, it is possible and quite likely for patents to be infringed by someone who has no prior knowledge of the patent at all. In fact, most software authors avoid reading patents to avoid being tainted by them.
  • Software being patentable at all is highly controversial, with most software authors and economists believing they are harmful to software innovation ( Wikipedia entry for "Software patent", Software Freedom Law Center Files Brief against software patents, Research on Innovation papers, US Federal Trade Commission 2003 patent report (PDF))
  • Opposition to information/mental process patents (software patents, business model patents) is not opposition to the patent system as a whole. Different subject matter exists in entirely different economic contexts, and most of the people who oppose software patents believe that patents for hardware or chemical compositions (drugs) are appropriate.
  • Most parliaments have never debated the merits of the issue and decided that software should be patentable. In the United States it was a specialized patent court that allowed software patents, while in Canada is was CIPO in their Manual of Patent Office Practises (politically interpreting US court rulings and applying to the Canadian context). In Europe article 52 of the European Patent Convention denies patentability for "programs for computers", and yet special interests like the patent office and patent lawyers have been abusing loopholes to grant software patents.
  • See also: European FFII: Frequently Asked Questions about software patents, Public Patent Foundation

    Article republished on p2pnet.