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Linux chief challenges Microsoft to pony up on patents

No-fly-zone for operating systems

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Microsoft's earned the respect of certain sections of the open-source community for its engineering work around open-source and Linux.

Specifically, its support for MySQL, PHP and JBoss on Windows and its involvement with Eclipse and Apache have been welcomed by developers and various community leaders in and around these technologies and projects.

Yet, there remain many more skeptical and even suspicious of Microsoft and its motives, especially when it comes to statements and legal actions on patents.

When it comes to winning over these doubters, Linux Foundation executive director Jim Zemlin - who welcomed Microsoft's work with Linux and criticized its stance on patents - thinks there's one big step Microsoft should take.

Sign a patent license agreement for Windows with the Open Invention Network (OIN). This would see Microsoft forfeit its right to prosecute those involved in open-source and Linux over claimed violations of its patents in their software.

Zemlin told The Reg during a recent interview such an agreement would create a "slew" of goodwill, and: "Send a message to the developer community that cares about this that Microsoft is a company that will compete on how will they innovate and not on a patent portfolio."

Zemlin spoke after Microsoft released thousands of lines of code under the GPL, code designed to improve performance and management of Linux running inside Microsoft's Hyper-V.

It later turned out a Microsoft Hyper-V driver had been in violation of the GPL, although Microsoft denied this was why it decided to release the code - to head off a potential legal action.

Zemlin, with Linux daddy Linus Torvalds, welcomed the code no matter what the reason. Zemlin at the time called it "good behavior we want to encourage" and Torvalds called on people to get over their disease of hating Microsoft.

Zemlin, though, thinks Microsoft can and should go further by ending any claim to patents in Windows that may or may not be present in Linux.

"They should take a patent license out with the OIN - put their money where their mouth is to make sure patents don't get in the way of operating systems, make operating systems a no fly zone when it comes to patents," Zemlin said. "That sends a clear message Linux is solid, and we validate this collective development model and we want to interoperate."

OIN, launched in 2005, buys and holds patents so they are made safe to use in Linux. The kind of patent agreement Zemlin was talking about is typically called a defensive patent, and is registered to provide protection from litigation and not to enforce.

OIN members include Google, IBM, NEC, Novell, Philips, Red Hat and Sony

Separately, the group's chief executive Keith Bergelt has predicted companies renowned for being patent factories would become more selective in the patents they obtain with an anticipated increase in defensive patents. Speaking at the recent O'Reilly Open-Source Conference (OSCON), Bergelt said IBM, Hewlett-Packard, Siemens, Motorola, Nokia and Philips would move from sheer numbers of patents to focus more on quality.

"Defensive publications are going to be done contemporaneously. It's cheaper, you get just as much protection and don't get to develop a family over three to five years. Defensive publications are being promoted by us and others in the open-source community," he said.

He noted, too, companies considered patent trolls - those who simply buy up patents - are now actually offloading their patents as it's proved hard to make money from them.

Rather than going soft, though, it seems the trolls are selling patents because their investors expect a return on investment and patents they've purchased have failed to make the money expected. When it comes to Linux, Bergelt said most of the patents they'd bought do not affect the core but "behaviors that affect the way Linux works."

He cited Intellectual Ventures, who he said had become a "net seller" of partners in the last six months and is now culling its portfolio. Intellectual Ventures was founded by Microsoft's former chief technology officer Nathan Myhrvold.

An Intellectual Ventures spokesperson told The Reg: "As part of our portfolio management responsibilities, we do regularly sort through our inventions to ensure the assets we hold apply to our primary areas of business." ®

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