Commits to protecting its intellectual property

Jul 23, 2009 16:32 GMT  ·  By

Microsoft gave rival Red Hat a taste of the real IP world on July 22nd, 2009, arguing that making contributions to open source projects while ensuring that intellectual property rights were respected by rivals were in no way business strategies that excluded one another. The move came from Horacio Gutierrez, corporate vice president and deputy general counsel, after the Red Hat legal team asked Microsoft to disregard all infringements on its intellectual property, especially when patent violations came from members of the open source community. Red Hat's take on the matter is that this would be the final price that the software giant would have to pay in order to be accepted as a member of the open source community. However, the proposition that Microsoft should not pursue or threaten patent litigation against users of open source solutions is unrealistic, Gutierrez notes.

“Over the years, the individual and corporate members of the community have through formal and informal steps made clear that they will not pursue or threaten patent litigation in the Linux area. Patent threats are irreconcilable with the norms and values that are at the heart of Linux. To win the respect and trust of the Linux community, Microsoft should unequivocally disavow such conduct and pledge that its patents will never be used against Linux or other open source developers and users,” a member of the Red Hat legal team advises Microsoft.

Gutierrez, on the other hand, notes that equilibrium is required between helping open source projects grow and protecting intellectual property from infringement. Earlier this week, Microsoft submitted 20,000 lines of code to the Linux kernel. On 14 May 2007, Microsoft General Counsel Brad Smith and Gutierrez revealed that, in Microsoft's perspective, the Linux kernel managed to violate 42 patents owned by the Redmond company.

Microsoft is, of course, offering to shield both members of the open source community and users of open source software from any patent-related litigation via IP licensing agreements. Gutierrez points out that the software giant is willing to license its patented inventions on commercially reasonable terms to both partners and rivals. Novell stands out from the crowd of Linux vendors that have inked IP assurance agreements with Microsoft, but there are others, including Xandros, TurboLinux, Samsung, LG Electronics, Fuji-Xerox, Brother, TomTom and Kyocera Mita.

“An objective observer looking at these developments should take them for what they are: real-life proof of Microsoft’s desire to build new bridges among industry partners for the benefit of customers, relying on patent licensing agreements as a means of opening up collaboration opportunities by ensuring mutual respect of IP rights and the innovations they protect,” Gutierrez adds.

The software giant's Corporate VP and Deputy General Counsel goes on to criticize Red Hat for mistaking what he called amicable patent agreements for “assault[s] on the philosophical tenets of free software” rather than a “pragmatic, mutually beneficial solution to IP.”

Red Hat, the largest corporate contributor to the open source platform's kernel, applauded Microsoft for releasing 20,000 lines of code designed to make Linux run in enlightened mode when virtualized as a guest OS on top of Hyper-V. The three device drivers delivered by Microsoft for the Linux kernel are regarded as a credible opening bid for the Redmond company to join the Linux community as a fully fledged member. Still, the Red Hat legal team wants Microsoft to renounce all benefits associated with the investments it made in innovation. Gutierrez notes that Red Hat needs a dose of the real world.

“In the real world, the same companies can – and frequently must – simultaneously compete and collaborate. Here too, technology companies have to strike a balance between collaborating to tackle difficult technical challenges common customers care about, and competing with one another by offering differentiated products that give customers real choice. Taking purely ideological positions does not work in real life. Instead, flexibility and nuanced approaches to complex problems will tend to win the day over dogmatic approaches,” he states.