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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Is Microsoft About to Declare Patent War on Linux?

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Microsoft's comments on happenings outside its immediate product portfolio are rare, and all the more valuable when they do appear. Here's one from Horacio Gutierrez, “Corporate Vice President and Deputy General Counsel”, entitled “Apple v. HTC: A Step Along the Path of Addressing IP Rights in Smartphones.”

By now, all the alarm bells should be going off: this is from Microsoft's top intellectual monopoly bloke, writing about one of the most surprising and potentially disruptive lawsuits in the world of technology – and one that doesn't even involve Microsoft directly. Why on earth is he doing it? Answer: because Microsoft has something very important to communicate.

He begins with a fair analysis of how the mobile market has evolved from one centred around the “radio stack”, and making calls, to the smartphone market today. Of this he says:

Now, however, as a new category of ‘smart’ devices has emerged, the value proposition has moved to the software stack. As is clear from advertising by all of the major brands – Apple’s iPhone, RIM’s Blackberry, Palm’s Prē, Motorola’s Droid, and Windows Phones – people buy smartphones because they are fully functional computers that fit in the palm of your hand. The radio stack is still valuable, as it allows the phone to connect to the Internet. But what is most valuable is not the connection per se, but the new things that users can do with it – find nearby restaurants and movie theaters, send and receive email, and watch video, just to name a few. The primary driver for adoption and sales in this market is the software on and available for the device.

That's indubitably true, but notice how he's shifting focus on to the *software* stack. He continues:

The smartphone market is still in a nascent state; much innovation still lies ahead in this field. In all nascent technology markets, there is a period early where IP rights will be sorted out. This is particularly true in a market, such as smartphones, in which a number of different technologies previously offered on a standalone basis now converge into a single device. Indeed, smartphones are a product of the ‘open innovation’ paradigm – device manufacturers do not do all of their development in-house, but add their own innovations to those of others to create a product that users want.

Interesting to see one of Microsoft's old favourites - “innovation” - being paired with “open”, a word that it is beginning to throw around increasingly. What follows is particularly noteworthy:

Open innovation is only possible through the licensing of third party IP rights, which ensures that those who develop the building blocks that make a new technology possible are properly compensated for their investments in research and development. After all, technology just doesn’t appear, fully-developed, from Zeus’s head. It requires lots of hard work and resources to create.

Well, it's certainly true that technology requires work to create, but it doesn't follow that innovation only occurs by licensing other companies' technologies. Indeed, but I can't help thinking of another rather senior and similarly-misguided Microsoftie writing in a similar vein some time back in the past:

Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?

That was written in 1976, well before even the GNU project started. But GNU and Linux and all the other amazing and amazingly-successful free software projects answer Bill Gates' rhetorical question in a way he certainly never expected. They demonstrate beyond dispute that hobbyists collectively *can* and *do* put many years into programming, debugging and documenting their code and distributing it for free, and that the results are as good as and often better than anything companies like Microsoft can product.

Gutierrez concludes:

now the industry is in the process of sorting out what royalties will be for the software stack, which now represents the principal value proposition for smartphones.

This was where he was leading:

In the next few years, as the IP situation settles in this space and licensing takes off, we will see the patent royalties applicable to the smartphone software stack settle at a level that reflects the increasing importance software has as a portion of the overall value of the device. In the interim, though, we should expect continued activity.

Translated: smartphones are mostly about the kind of software that Microsoft produces; we have lots of patents in this area, and we are going to collect much more in this area – if necessary, through lawsuits (“continued activity”) of the kind Apple is bringing.

The question, of course, is against whom will Microsoft be bringing those lawsuits? And the answer, presumably, is everyone that makes smartphone software stacks, since these computer-like technologies will doubtless overlap with some of the doubtless broad and obvious patents that Microsoft will claim to have.

Some companies, used to these kind of games, will simply cross-license stuff if they have a big enough portfolio of similarly obvious patents. Others will just cough up some dosh to get Microsoft off their backs. But amidst all these conventional players, there is one very unconventional one: Linux, in its various mobile incarnations.

Taking legal action against *all* companies producing software stacks for smartphones would allow Microsoft to claim with some semblance of plausibility that it was not specifically targeting Linux this time (unlike its previous sabre-rattling statements about patent infringement that were specifically aimed at Linux). But the net effect would be that Linux would be the chief victim of such an approach, since any companies using it in their smartphones are likely to end up doing deals with Microsoft – and hence implicitly accepting its claims – whatever the open source community might think or want. It would be like Novell's pact with Microsoft, writ large and much worse.

As the final line of Gutierrez's piece puts it:

Apple v. HTC was not the beginning of this process, and it isn’t the end of the story either.

It will be interesting to see how that story unfolds, and what role Microsoft has decided to take in it.

Follow me @glynmoody on Twitter or identi.ca.

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