In-Depth

Microsoft on the IP Warpath?

Gartner thinks Microsoft isn’t so much attempting to stifle open-source innovation—although that’s one possible upside—as it is to generate more cash flow

• By Stephen Swoyer
• 06/05/2007

Don’t be too quick to write off Microsoft Corp.’s intellectual property (IP) fulminations as just so much saber rattling. Industry analyst firm Gartner Inc. last week weighed in with its take: Microsoft isn’t so much attempting to stifle open source innovation—although that’s one possible upside to its IP gambit—as it is to generate more cash flow. Other industry watchers aren’t convinced. They see Microsoft’s IP actions as another example of the company’s use of fear, uncertainty, and doubt (FUD) to help put the chill on a potential competitor—in this case, free and open source software (FOSS).

To recap: Microsoft officials have said that FOSS infringes on at least 235 of its patents. Open source advocates, not surprisingly, dismissed this claim as a textbook case of FUD-mongering. Gartner, on the other hand, thinks Microsoft reasons run deeper.

"Microsoft will not seek to litigate patent claims against users. Instead … the company will attempt to pressure technology providers to come to the table and negotiate an equitable licensing or royalty arrangement in instances where Microsoft can prove its claims of infringement," write Gartner analysts Mark Driver, Brian Prentice, and George Weiss.

What’s in it for Microsoft? The same thing, apparently, which first motivated The SCO Group Inc. to file suit against IBM Corp. four years ago: money. "Microsoft appears to be attempting to receive a return on its investments in R&D by creating revenue opportunities from, or cross-licensing deals with, OSS technology providers through its technology patent portfolio," they write.

Gartner is surprisingly willing to take Microsoft’s IP infringement claims at face value: "It believes that companies receiving revenue from OSS that is, in part, based on Microsoft's innovations … should be subject to the same market dynamics that drive any other commercial technology strategies."

Gartner’s analysts argue that Microsoft wants to bring open source technology providers, but not necessarily users of FOSS, to the bargaining table. "We believe Microsoft's public announcement of these patent infringement allegations is an attempt to increase pressure on technology providers to accept patent agreements with Microsoft," they note, pointing to Microsoft’s FOSS agreements with Novell and Samsung. "We do not believe Microsoft intends to pursue end-user IT organizations. Instead, we believe it will use the fear of legal compliance to pressure IT providers to enter into individual IP agreements."

There’s a sense, however, in which Microsoft’s IP gambit could spill over into a much bigger fracas, Gartner concludes.

"If suppliers balk or challenge Microsoft, this could escalate into a broader conflict as large-scale commercial open-source vendors—such as HP, IBM, and Sun—are pulled into the conflict when their customers and partners turn to them for protection and support," they write.Jonathan Eunice, founder and principal IT advisor with consultancy Illuminata Inc., has a more cynical take on Microsoft’s IP moves.

"Unlike the generalized ‘FOSS infringes’ claims sowing fear, uncertainty, and doubt … of the past few years, Microsoft now cites a specific number … of patents that it believes [have been] infringed, tidily grouped into Linux kernel, user interface, Office software, email, and other categories. By being more definite and detailed, Microsoft hopes to make the sense of threat more real; in other words, it’s raising the ante," he points out.

On the other hand, Eunice says, Microsoft is almost certainly blowing smoke of a sort. "FOSS is now highly integrated into the way that organizations around the world build and use information technology," he indicates. "It wouldn’t do anyone, Microsoft included, particular good to massively disrupt IT development and deployment practices. It wouldn’t do anyone good to instigate a ‘scorch the earth’ apocalypse. But it might do Microsoft good to somewhat disrupt the peace, maybe launch against a few soft targets, and make others wonder if it might escalate even further."

Eunice concludes, "[I]t’s unlikely that Microsoft would or could really ‘go ballistic’ against FOSS in any serious or systematic way, given that it’s Microsoft’s customers, partners, and routes to market that it would be ‘going ballistic’ against. But it would help Microsoft to slow the FOSS juggernaut, and to cause businesses to think twice or even thrice before choosing a FOSS option over a competing proprietary option. And so Microsoft seeks to tilt the game back to its favor—or at least less to its disfavor—by upgrading from simple FUD to patent Scud."