The story that will not go away

The Register reports that Microsoft is

too busy to name Linux patents

uh… yeah.

This whole thing bothers me. Because it means that Microsoft is implying that anyone in HPC using Linux is a thief, stealing and using Microsoft intellectual property without paying Microsoft for the privilege. Neat strategy. “Use our stuff and we won’t sue”.

I can’t believe that I am the only one that finds this offensive. Somewhat more odious than their initial marketing message of “now HPC is mainstream.”

This entire episode should be brought to rest with a simple apology by Microsoft to everyone it just called a thief. Take their lumps and go home.

They can’t seem to let it rest though.

First we are told that IBM and others don’t detail their patent disputes. I think I rather soundly destroyed that particular argument, by showing in fact, IBM does detail its patent disputes, with specificity. Pointing to the legal bits as well, we saw that, in order to successfully litigate this, significant specificity of the alleged infringement must be made to the alleged infringer.

In the absence of this marking, actual notice of the specific patent must be given to an infringer, and damages can then only be obtained for infringements after notice. It is important to note that the infringer does not have to have actual knowledge of the patent in the case of marking; however, very specific notice must be given if the patent owner does not mark, or is not making articles and, therefore, has nothing to mark.

I can claim ownership of “circular mechanical device for interconverting translational and rotational forces” all day long, accuse people and companies of misusing my IP, and claim I won’t sue them. But until I come out with a specific patent number on my wheel, and point to its claims, well, there really isn’t anything I can do.

Other than FUD.

In the register article, they say

“Most people who are familiar with patents know it’s not standard operating procedure to list the patents,” Markwith said.

Markwith must not have looked at this blog. That argument was dead days ago. You need another argument, one that is not so easily pointed to as being incorrect.

They extended this (failed) argument to say that it would be hard to keep up with the paperwork. Uh… thats the price you pay for filing patents. There is another issue

a failure to bring a timely infringement suit against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought.

This is from a Wikipedia article on trademarks, though from we see that

In the interest of fairness and equity, those who are granted a monopoly under the patent system have an obligation to enforce their rights in a timely manner. Advanced Hydraulics, Inc. v. Eaton Corp., 415 F. Supp. 283, 286 (N.D. Ill. 1976). Laches protects a potential infringer from unfair damage claims resulting from the intentional or neglectful delay of a patent holder to file suit. Two elements underlie this defense: (a) the patentee’s delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay.

Now of course, I am not a lawyer. Go speak to one if you want real information. This is my guessing.

Seems to me that if Microsoft declines to press its case with specificity in a timely manner, it effectively loses the right to press its case.

It fired the opening shot, was unprepared for the response. Now what to do.

Again, hopefully, they will opt for the sane strategy. That is, back away, and cease talking about it.

Because if they do keep talking about it without doing anything about it, note that last line in the block quote above ….

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