Should Open Source Fear Microsoft Patents?

So Microsoft is waving the patent stick. Again.

Is there any substance to his latest claims about open source and Microsoft’s patents? Somehow, that part got lost in the hyped-up coverage of his latest threats.

This publication and many others published Microsoft CEO Steve Ballmer’s comments when he once again claimed that somehow Linux users, in this case Red Hat Linux users, owed Microsoft over potential intellectual property infringement.

Blah. Blah. Blah.

Regular readers of my work on know that Ballmer’s accusation is not new. Yet even though the threat isn’t new and neither are the implicit accusations of patent infringement, Ballmer still gets the headlines.

Should Open Source users fear Microsoft’s patent-fighting words this time? It’s a question that could easily be dismissed by just shrugging the statements off as coming from an overly energetic, outspoken CEO, who sometimes speaks out of turn and out of step with his company’s official public relations spokespersons. But is that really the case this time?

Certainly other Microsoft executives that I’ve spoken with over the years have noted that Microsoft wants to work with the open source community and not necessarily confront it with legal challenges. (It has been years that Microsoft has implicitly accused open source of using Microsoft intellectual property.)

Bill Hilf, who has recently been promoted to General Manager of Windows Server marketing and platform strategy, chatted about this more than a year and a half ago specifically about the intellectual property issues and Microsoft’s approach. At the time Hilf was running Microsoft Open Source lab and was working on Windows to Linux interoperability issues where he dealt a lot with Samba, the open source file and folder sharing application that enables open source users to interoperate with Windows file shares and printers.

The Road Leads to Samba

Samba is at the root of what I suspect are Microsoft’s key issues with open source and intellectual property. The Samba technology was specifically mentioned in the November 2007 patent covenant between Novell and Microsoft. Novell denied that the covenant implied patent infringement by Samba, or that Novell was admitting that its open source software products infringe on Microsoft’s IP.

Hilf told me in 2006 that when people steal Microsoft IP, that’s when Microsoft has a big problem with open source. He then pointed the discussion at Samba.

“There is a very careful balancing act for us. With Samba, I’m really familiar with that technology and I’d say that a lot of what they do under the guise of interoperability is clone ability,” Hilf said at the time. “They ask things of us and we say, ‘That’s our IP.'”

Microsoft’s Jason Matusow, who once headed up Microsoft’s Shared Source efforts and now works on standards for Microsoft, has also been a voice on the patent issue. Matusow in May of this year explained to his view that Microsoft wants to build IP bridges and not burn them.

“We think software intellectual property [IP] is critically important and has a great deal of value, but we want it to be quality IP and not just something to block other people from doing stuff,” Matusow told “IP can become a pivot point for collaboration.”

Samba, and Other Strategic Dances

At the heart of the issue is Microsoft’s allegation that open source software infringes on some 235 Microsoft patents. To this day however, Microsoft has yet to actually publicly name even one of those patents that open source allegedly infringes upon.

The argument I’ve heard time and again from Microsoft is they won’t reveal the actual patents as that will weaken their negotiating position. Therein lies the root cause of why open source users don’t need to fear Microsoft’s patents.

When and if Microsoft should ever reveal what those alleged patents are, the open source community would simply code around them. Certainly Microsoft could still attempt to litigate but the real money for a company like Microsoft comes from licensing its patent portfolio.

Red Hat has plenty of its own patents and could cross license with Microsoft, though it is unlikely that will happen.

That said, working together with Microsoft on interoperability is certainly not out of the question for Red Hat. In June of this year, Red Hat CEO Matthew Szulik in a conference call with investors noted that Red Hat is interested in working with Microsoft.

“We continue and invite the opportunity to participate with Microsoft around standards and about improving the customer relationship and experience of being able to operate successfully within a heterogeneous environment,” Szulik said at the time. “For us, it’s less religious and more importantly about how do we create a win-win for the customer. Our position hasn’t moved and it’s been the same for as long as I’ve been at Red Hat.”

Furthermore, other open source companies beyond the core Linux space have demonstrated that it is possible to work with Microsoft, without negotiating on patents.

A case in point is Zend, the lead commercial backer behind the open source PHP scripting language. Zend just announced sweeping new PHP enhancements for Windows, developed with the help of Microsoft.

Gutmans, when asked about the patent issue, told me no discussion about licensing of patents took place on the deal, and that Zend collaborated with Microsoft in the open. “Moving forward it will continue to be a pretty transparent relationship where users will see what we’re doing,” he said.

So Ballmer can say whatever he wants. He can threaten. He can insinuate. He can even negotiate deals with those companies that buy into the patent covenant deal. Open Source users need not necessarily worry.

Open source projects and vendors can work with Microsoft in the open; interoperability can and does exist without patents being a barrier. It is in the interests of both the open source community and Microsoft to provide open environments that can co-exist in order to meet customer demand. It’s something that benefits both sides and so long as that remains the case, Ballmer will just be blowing smoke.

Sean Michael Kerner is a senior editor for

News Around the Web