AlbertPacino
Explorer
Microsoft Corp. has extended an olive branch to the open-source community, calling for a sit-down to discuss how the software giant can better work with the open-source world.
But don't expect to see an open-sourced version of Windows any time soon. Microsoft is making nice with its open-source adversaries, while continuing to defend its rights to hold and use its arsenal of software patents.
At a recent conference sponsored by the Association for Competitive Technology (ACT) in Cambridge, Md., Brad Smith, Microsoft's general counsel, called for bridge building between Microsoft, its competitors and the open-source community.
"In the world of software development today there is a broad panoply of software development models," Smith said.
"We're going to have to figure out how to build some bridges between the various parts of our industry," he continued. "We're going to have to figure out how we can bring the various parts of our industry closer together. Not necessarily in the sense of changing the way software is developed, but building bridges so that we all have the ability to collaborate with each other. And that will mean we will need some new rotations, I think, in how we work together, in how we license, in how we share technology or intellectual property rights with each other."
One open-source community leader said this was the first conciliatory statement to come out of Redmond, Wash., where Microsoft is headquartered.
Larry Rosen, former general counsel for the Open Source Initiative and a leading open-source supporter who was present for Smith's speech, said, "I'm pleased to hear requests for bridge building, and I have been open to it all along. And I think it's important that the entire IT industryâ€â€both the proprietary side and the open, free software sideâ€â€at least understands each others' positions better, if not actually come to compromises that allow both 'sides,' and I hate to use the word 'sides' but I think it would be very helpful to everyone to engage in dialogue."
In an interview following his keynote, Smith told eWEEK: "First you have to start with some dialogue. We are now interested in it, and we'd like to do this. I think we'll find we've got a lot more in common than we realize, and I think there are many of us who would like to meet."
Meanwhile, Rosen said, "I would like to see that they engage in an intellectually thorough discussion where we actually prove the points that he's making or the points we're making about the value and utility of software patents, rather than simply make the assumption and jump to the conclusion that reform is needed. ... The test is going to be when we engage in that dialogue are we really going to sit at the table and put things on the table and figure out how to reach some form of compromise? We did that over a three year period with the W3C [World Wide Web Consortium]."
Rosen noted that the open-source community helped the World Wide Web Consortium develop a royalty-free intellectual property policy and is working with the Organization for the Advancement of Structured Information Systems (OASIS) and would like to work with Microsoft in the same way. In fact, Rosen said he would like to see the software industry do away with software patents altogether.
Richard Wilder, a patent attorney and partner at the Washington, D.C., law firm Sidley Austin Brown & Wood, said of Smith's comments, "For the kinds of bridges he's talking about, I think you need a problem to be solved and then you can work from there."
Eric Raymond, a Malvern, Pa.-based open-source community leader and consultant to Sun Microsystems Inc. on the company's move to open-source Solaris, said he too welcomes the conciliatory tone from Microsoft.
"Nobody in the open-source world expects Microsoft to open-source their core products; given their business model that would be insane," Raymond said.
"But, realistically, they could do some important things. One, open up their file formats. That is, fully document things like the Microsoft Word and Windows Media formats, and make a binding promise not to sue people who write software to interoperate with them," he said. "Two, put down the patent weapon. Do as IBM has, and offer their software patents under royalty-free, paperwork-free license to open-source projects. Three, support open technical standards, rather than sabotaging them. Microsoft has a history of destructive meddling at organizations like the IETF and W3C, and of attempting to hijack standards like Kerberos by making them dependent on proprietary 'extensions.' Simply not doing this would be a huge improvement."
But Smith argues that Microsoft and others not only have the right to hold their patents, but to exercise them to defend their intellectual property, though also to work in partnership with others.
"There are a whole diverse set of ways that companies can and should use their patent portfolio and technology base not only to protect their own innovation, but to stimulate and share innovation with others," Smith said.
Microsoft has crafted what Smith called "outbound royalty-based patent licenses" that the company has used to transfer technology to startup firms.
"We in the private sector not only have to do a good job of obtaining protection for our own inventions, we also have to do more to work with each other," Smith said. "And we have to license our intellectual property rights to each other for a fair and reasonable termâ€â€sometimes it's for a royalty, sometimes it's royalty free."
Sanjay Prasad , chief patent counsel at Oracle Corp., said, "A lot of people say that patents are the tools of big business to lock out other people, and they certainly are used by big business, but a patent has a quite a bit more value to a small business than a big business, there is just no doubt about that."
Meanwhile, Smith called for patent reform, a refrain of a message he had raised earlier this year.
"The reality is that anybody who is an inventor and is successful both relies on patents and is a target for patent litigation by others," Smith said. "And everybody should have to pay their fair share and respect the rules. But it helps if the system works well. And with the explosion in patent litigation in this country we've see the increase in litigation abuse. We've seen people inflate their ability to seek monetary awards when it wasn't really deserved."
Smith called for Congress, which held a hearing on patent reform earlier this week, to focus on four things: patent quality, patent litigation abuse, the needs of smaller inventorsâ€â€"We've been supportive of what we call the zero fee filing system for small inventors"â€â€and harmonization, "which basically means among other things that the U.S. needs to move to a first-to-file system so that like everywhere else the first person to file an application gets the award rather than it going to the first to invent it."
David Simon, chief patent counsel at Intel, testified before a Senate Judiciary Committee hearing earlier this week and said, "Let me state at the outset that the patent law is not broken. The law is fundamentally sound and works well." However, Simon called for reforms or improvements in the areas of patent quality, training and funding for U.S. Patent and Trademark Office staff, access to prior art, harmonization and litigation abuses, among others.
"More recently, the PTO, with Jim Rogan [former director of the PTO] and John Dudas [current PTO director] providing the political leadership, decided that now was the time to change the fundamental premise on which the PTO would judge whether or not it was really making a contribution to supporting industry by shifting away from what had predominantly been a production-based mentality"â€â€how many patent issues could be generated per staff year of effort"â€â€to attempting to import into the PTO as many different quality improvement techniques and practices as possible," said Brad Huther, a director at the U.S. Chamber of Commerce and former president and CEO for the International Intellectual Property Institute.
At this week's hearing, Dudas said that the patent law should be changed to award a patent to the first person to file a claim. The current rules allow patents to be granted to the first person who devised the invention.
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