Opting for the sane strategy

Lots of people called this for what it was. FUD. Pure and simple. Marketing by threatened litigation.

This evening, information-week posted more discussion, including Linus Torvalds viewpoint. Not so oddly enough, his view was quite similar with my thoughts.

That wasn’t what struck me. It was the backpedaling.

“We’re not litigating. If we wanted to we would have done so years ago,” said Horacio Gutierrez, Microsoft’s VP for intellectual property and licensing, in an interview.

Even so, Microsoft would not likely use the courts to try and extract royalty payments from corporate Linux users that it believes are violating its patents even if it’s no longer able to strike deals with Linux distributors.

Gutierrez said the comments were made not as a threat, but with the intention of highlighting an intellectual property issue affecting the entire computer industry. “It’s important for everyone to understand that there is a real problem with Linux patents and that there is a need for a solution,” he said.

My thoughts are, simply put, what utter hogwash. Their comments were a carefully prepared shot across the bow. It was meant to have marketing impact.

I don’t think they anticipated the backlash. Whats more, Linus raised a point in sharp relief that I had only hinted at:

“It’s certainly a lot more likely that Microsoft violates patents than Linux does,” said Torvalds, holder of the Linux trademark. If the source code for Windows could be subjected to the same critical review that Linux has been, Microsoft would find itself in violation of patents held by other companies, said Torvalds.

“Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really ‘fundamental’ patents,” Torvalds said in a response to questions submitted by InformationWeek. But he doesn’t like any form of patent saber rattling. “The fundamental stuff was done about half a century ago and has long, long since lost any patent protection,” he wrote.

The issue is unfortunately not behind us. One day this will need to be resolved, in court. Which means that one day, Microsoft is going to have to get specific, in public.

But, as I indicated, it is worse than simply that. Microsoft signaled the opening of a new front, and marketing by litigation. I will hazard a guess that they are going to regret doing so.

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