FUD update, day 2

Well, we seem to not have been the only ones to notice the problems with the arguments made by Microsoft legal. Larry Augustin, of VA Linux fame, wrote a response that is worth reading. In it he basically says “put them up (the allegedly infringed patents, and where the infringing code/design is), or shut up.” The critical “money” quote is

Gutierrez even claims such infringement is willful:
“This is not a case of some accidental, unknowing infringement,” Gutierrez asserts. “There is an overwhelming number of patents being infringed.”
Setting aside questions of Gutierrez’ command of grammar, I take offense at the notion that anyone in the Open Source world is willfully violating a Microsoft patent, particularly since Microsoft refuses to disclose any potential violations:

That is the point after all. Super-secret evidence. Reminds me of the Animal House movie. They are completely unwilling to discuss the the alleged infringements in public. Remember, one of the lawyers says this:

Why won’t he do the same thing in public? “There are a number of legal reasons why companies don’t do that. No company does that. IBM (IBM) doesn’t do that.”

Oh really? As I pointed out yesterday, they do. To wit:

ARMONK, NY – 23 Oct 2006: IBM (NYSE: IBM) today announced that it has filed two patent infringement lawsuits against Amazon.com for unspecified damages. The lawsuits come after nearly four years of attempts by IBM to resolve its concerns with Amazon.com over infringement of IBM???s patents.

IBM said that Amazon.com has willfully infringed and continues to infringe on a number of key IBM patents, including:
1. US 5,796,967 – Presenting Applications in an Interactive Service.
2. US 5,442,771 – Storing Data in an Interactive Network.

Sorry Mr. Gutierrez, the facts do not appear to be on your side here. IBM does in fact disclose specific patents. Since your argument for not divulging rests upon the assumption that IBM and others do not do this, and we have shown that IBM does in fact divulge the patents, your argument against divulging is rather weak. IBM does this, as should you.
Another blogger made additional comments. I don’t agree with some of the thesis around this. There are not millions of contributers to Linux. Microsoft’s lawyers are not the biggest/baddest around, they simply have the most money backing them. Which means they can lose and appeal until they exhaust their competitors funds. They have done this to national governments, they can do it to tiny corporations and people. Other minor nitpicking as well on my part. That said, this blogger makes an important point.

But the remaining 150 or so issues – they’re the real meat, and that’s where Microsoft is afraid – most rightly so. US patent laws – despite all their ridiculous demands and restrictions – do provide for time to rectify errors/transgressions assuming they weren’t knowingly committed. Now if you told every single open-source contributor, every avid Linux programmer, every commercial entity whose entire existence depends on the free availability of open source software exactly what was wrong, to what extent, and how it needed to be changed to no longer be an issue – how long do you think it would take for all these violations to vanish into thin air?

Lets say I disagree with 150. I would be hard pressed to imagine 1/10th of that. Given what I have seen in the patents coming out, a fair number of them are weak, and quite likely to be pushed over if challenged.
But, well, it gets better.
Look at some of the text in US patent law
From this site
we see:

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.

Very specific notice. Patent numbers are very specific notice. Highly specific.
So there it is. Without specific patent numbers, without specific pointers to the alleged infringement we have nothing.
Nothing but FUD.
Marketing by legal threats.