Years ago it was all propaganda made up by the press: Microsoft against Open Source, Microsoft will use its patents against Open Source products. Microsoft wants software patents in the EU to kill small and medium competitors.
True, but…
True, they flooded Brussels with patent lobbyists that contravened what the professionals in Europe wanted. But Parliament listened to European software professionals, not convicted abusers of European antitrust law. The MEPs put forward very substantial amendments to the infamous CII-directive proposal. The one of these that was less disputed could save us a lot of time and worry now. It was an interoperability provision that is taylored to market needs. There are several versions of it, but all or most of them are fine. Of course Parliament wanted put the kibosh on software patents and when there are no software patents you don't need an interoperability provision anymore. So most of the activists paid low attention.
European Parliament 1st reading: Article 6a. Member States shall ensure that, wherever the use of a patented technique is needed for a significant purpose such as ensuring conversion of the conventions used in two different computer systems or networks so as to allow communication and exchange of data content between them, such use is not considered to be a patent infringement.
or in second reading:
Crosspartisan Compromise Amendments Article 6a: Wherever the use of a patented technique is necessary in order to ensure inter-operability between two different data-processing systems, in the sense that no equally efficient and equally effective alternative non-patented means of achieving such interoperability between them is available, such use shall not be considered to be a patent infringement, nor shall the development, testing, making, offering for sale or licence, or importation of programs making such use of a patented technique be considered a patent infringement.
Now, with no directive the European Commission takes the full responsibility for the legal insecurity and the continuous abuse of the EPC by the European Patent Office. While formally the European Commission is no lawmaker, separation of powers is in its infant stages in the EU.
Ballmer sabber-rattling
You know the video? Interesting to find also the Tribeka guy on the video listening to the master. They did extreme SME lobbying for software patents. Steve Ballmer said:
People use RedHat at least with suspect to our interoperability in the sense have an obligation eventually to compensate us. There are plenty people who also have intellectual property and everytime the lawyers come to Microsoft I suspect they also want to go to the open source world. To get what I call an IP interop framework between the two worlds is important.
Bill Gates would have handled things differently. He would have smiled. He would have been diplomatic. He probably would not have commented at all, yet he would have left the impression that the EU is somehow working against competition in fighting Microsoft, and ignoring the interests of its own innovators in rejecting software patents.
Mark Webbink, former RedHat Legal Consultat and FFII member
I know you are quite concerned that Red Hat is not showing due respect for your (unidentified) patents, but it strikes me as a little rich that you or Microsoft should be lecturing anyone on the proper respect for the patents of others given all of the following parties that believe that Microsoft does not respect their patents….
And then lists ongoing patent infringement lawsuits.
Mark Shuttlewort, Ubuntu founder and fellow FFII members identifies it as a FUD strategy
Ballmer is saying that Linux is not a safe neighborhood for users. He's implying that simply using open source is somehow dangerous. They need to back off on those claims. They're simply not true. Microsoft must actually state what the infringements are.
The patent party
Now our friends of Groklaw step in and write: Patent Infringement Lawsuit Filed Against Red Hat & Novell - Just Like Ballmer Predicted. The proxy is apparently the notorious Acacia here.
And now let's play, where's Microsoft? … Betcha he's in the tree's leaves somewhere if we look close enough. We had our first hint when Steve Ballmer said in his speech the other day that he figured other folks besides Microsoft would want Red Hat and FOSS to pay them for their patents. Remember? Is he a prophet or merely well informed? Or is there more to this? When I lay out all the research, you can decide.
What does it mean for Open XML?
We have to be really careful and find an indemnification model for patents underlying a potential international standard that is legally watertight and will not rely on benevolent behaviour. Both the OSP and the CNS from Microsoft are no patent models which give sufficient market confidence and that seems to be intentional as a means of obfuscation. No efforts were untertaken to ensure market confidence. The BRM process cannot adress these problems but once Open XML adoption is considered on the national level these patent problems need to be raised over and over again. It is also important to push for the adoption of proper interoperability provisions in the worldwide legislation. The EU antitrust case did show that you cannot rely on the institutions to fix interoperability problems ex post.
And of course substancial reforms of the worldwide software patent systems are needed. A very interesting compromise approach is currently put forward by IBM, a Soft-IP approach which should facilitate licensing of patents and reduce transaction costs. But FFII will continue to push for real reforms for an ethical patent system without software and dataprocessing as a patentable subject matter.
