Analysis: Microsoft patent claims hint at internal issues

IDG News Service - Microsoft Corp.'s aim to seek patent royalties from open-source software distributors and users may be an attempt to use legal threats to deflect attention from larger questions surrounding its business -- including lack of interest in new versions of core products and lackluster profit from new wares.

Microsoft's claims that it will ask distributors and users to pay royalties for up to 235 of its patents included in open-source software, including Linux, is clearly an attempt to spread fear, uncertainty and doubt and make people hesitant to use open source as an alternative to commercial products, intellectual property (IP) attorneys said. But the claims also raise questions about the business strategy behind Microsoft's aggressive moves amid rumbles that customers have been slow to adopt Windows Vista and Office 2007 while new products such as the Xbox 360 remain unprofitable.

The issue came to light today with the publication of a Fortune article that quoted Microsoft CEO Steve Ballmer saying, "We live in a world where we honor, and support the honoring of, intellectual property," and adding that users of free and open-source software have to "play by the same rules as the rest of the business. What's fair is fair." The article included comments from additional Microsoft executives detailing plans to seek the infringement claims, and just as it was posted online, Microsoft sent e-mails to other journalists about the issue.

One of the operations targeted, OpenOffice.org, quickly fired back, saying Microsoft's claims are a desperate move.

There may be a link between the timing of Microsoft's patent claims and the release of Windows Vista, said Stuart Meyer, a partner at law firm Fenwick & West LLP in Mountain View, Calif. Rather than adding features to Vista that would make business users want to adopt it, the operating system's distinguishing characteristic is the addition of an engine that will shut down users' access to the operating system if they are using a counterfeit or pirated version, he said.

"Why do people want to switch to an OS that just includes new hurdles that have to be cleared?" he asked. Microsoft may have decided that enforcing its IP through litigation is more important than offering innovative software that can compete on its own merits -- a strategy that may leave many users unimpressed, Meyer said.

"It's just friction that doesn't advance the ball," he said. "It's tough for people to get behind this, even if it's part of our Constitution [to prevent patent infringement]."

Microsoft's unwillingness to specifically identify which patents are being violated also shows that it is less than serious about initiating litigation, which may suggest that the company knows it will be a tough battle, Meyer said. "If Microsoft wanted a lawsuit, they would have brought the lawsuit first," he noted.