Thursday, 18 March 2010 12:53

Patents: is the sky about to fall?


A statement by Microsoft about the patent suit which Apple recently filed against mobile phone manufacturer HTC has resulted in some rather alarmist commentary today.

Some background: Apple filed its suit on March 2, leading at least one commentator to speculate that this was more of a strike against Google than anything against HTC itself. This, because HTC has recently started to sell some phones under its own name, some of which run Android. That's a bit of a stretch in my book.

This morning AEST, we have Horacio Gutierrez, corporate vice-president and deputy general counsel, issuing a statement in support of Apple's lawsuit.

Of course, Gutierrez, like many of his colleagues, loves to instill as much fear as he can among all and sundry in order to hike up the fear factor. This is a tactic that has been used by companies, governments and individuals since time immemorial. (As an aside, the BBC's Adam Curtis released a wonderful documentary about this a few years ago.)

Microsoft never misses a chance to try and scare smaller companies for all kinds of reasons.

Gutierrez' pronouncement has resulted in sensationalist headings which serve only one purpose - they serve as space-fillers for sites which cannibalise other people's work, they increase the number of clicks on said commentary, and they make generally sensible commentators look a bit foolish.

We see little innovation in the technology industry these days. In fact, we haven't seen much of it since Tim Berners-Lee invented the web.

Given that all medium-sized or large tech companies have to show increasing profits every year - else their share prices would tend downwards and the men at the top would not get their bonuses - they are all loading up on patents to ensure that they can squeeze licensing income out of smaller companies.

The bigger companies are all making healthy profits, despite the financial problems that dogged the world last year and still persist in many European countries and the US.

In this scenario, why would any one company take what the American investigative journalist Seymour Hersh called the Samson option? We commonly call it MAD - mutually assured destruction.

There is no quick path to profit via an IP-related suit against a big technology company; it will just wind on endlessly unless the parties are prepared to settle. We have seen that in the case of SCO vs IBM, which has just entered its eighth year. And it does not matter if you or your backers have deep pockets.

A big company can shake down a smaller outfit without a lawsuit; it just has to make a friendly (?) visit or else send a letter across and it will achieve its objective. If the smaller firm resists these approaches, the big firm can do what Microsoft did in the case of TomTom: file a suit and then settle.

Will Microsoft file suit against one of the bigger companies for alleged violation of its own patents that it claims are in Linux (the kernel)? The short answer is no.

When it comes to any of the big Linux users - HP, IBM, Google, Oracle - they will pay the licensing fees quietly if there is no other way out and continue with business as usual. There is some simple, logical reasoning behind this: it is better for one to have 20 percent of the market than to start a fight and lose even that when everybody else gangs up on the one who initiated the fight.

If other big companies own patents which Microsoft is using - and they definitely do - then there will be a deal that involves no money, merely cross-licensing. Principles are irrelevant when it comes to this level of business. Big companies will sup with the devil to protect their own bottomline.

What many have missed is the fact that Microsoft launched its trial balloon against Linux when it filed suit against TomTom. The outcome was satisfactory even if TomTom showed some fight and anything that can continue to drive that strategy will be pushed by the good folk at Redmond. Gutierrez has just raised the fear level a few more notches. Public memory is short, so it would not be unreasonable to expect more such utterances from various credentialled individuals.

Has Microsoft declared patent war on Linux? Yes, but that happened some time ago. After a lot of FUD, the TomTom case served as the model for extortion. Will it be world war III? No, it has been, and always will be, guerrilla warfare.


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Sam Varghese

Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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