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9/10/2009
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Microsoft Sale Of Linux Patents Roils Open Sourcers

Linux Foundation Executive Director Jim Zemlin charges that Microsoft's goal in selling 22 patents was to get them into the hands of patent trolls.

Microsoft put 22 patents up for sale in July, listing them all as in the "open source" category, with some of them, "Linux-focused." The ultimate buyer was the Open Invention Network, a consortium of Linux backers that wanted to take them off the market.

But in between Microsoft marketing and OIN ownership there was a bit of behind the scenes maneuvering. OIN was never approached by Microsoft to buy the patents, even though it was an obvious, interested party.

And the actual bidder, Allied Security Trust, was acting as a front man for OIN as well as its own 11 members. OIN was approached by AST "early in the process and invited to be a surrogate bidder," unbeknownst to Microsoft, says OIN CEO Keith Bergelt.

When AST's bid won the auction, AST and OIN signed a deal that made OIN the ultimate holder of the patents. The irony of the maneuver is that it was an unlikely outcome.

AST normally bids for patents on the open market, licenses its members to protect themselves from them, then quickly resells the patents. By using this "catch and release" policy, it leverages its members investments and gets income that allows it to protect its small membership from more patents. One result is that many AST acquired patents end up on the open market and in the hands of patent trollers, who claim royalties from companies whose products might be covered by their patents.

Linux Foundation Executive Director Jim Zemlin charges that Microsoft's goal in selling the patents was to get them into the hands of patent trolls, via AST. It takes a minimum of $5 million for a company to defend itself from a patent claim, even if the claim is later found to be without merit, he said. Many companies settle rather than fight it out in court.

Furthermore, he said in an interview conducted as he traveled in Korea, Microsoft knew all about AST's "catch and release" policy. AST is made up of a group of reputable companies, including HP, a Linux reseller, that buy patents together for their own protection.

AST offered cover for Microsoft, if it wanted to raise questions about whether Linux was subject to patent litigation, without launching patent battles itself. Even if a court ruled ultimately that a patent didn't cover Linux, news of a legal battle over Linux would prompt some companies to avoid adopting more use of Linux until the patent disputes disappeared, Zemlin said.

"Microsoft thought it was undermining Linux in a way where they could keep their hands off" the actual litigation, he charged. He commented more extensively on the deal in a blog titled, Protecting Linux From Microsoft (Yes, Microsoft Got Caught).

"It is important to note that we talked with multiple product companies that are members of OIN as well as AST. If OIN wished to present an offer, nothing would have stopped them from doing so," said David Kaefer, general manager for IP licensing, in a statement to InformationWeek Friday.

Red Hat, which has been a target of Microsoft's patent claims in the past, went even further. Microsoft used "marketing materials that highlighted offensive uses of the patents against open source software, including a number of the most popular open source packages," the company said in a blog posted to its site Wednesday. Red Hat's Enterprise Linux is one of those packages.

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