Jeremy’s Blog

(A follow up to previous coverage)

As you may have guessed, this topic is being discussed heavily around the web. Mark Radcliffe points out that Open Source companies are likely becoming a more tempting target to patent trolls due to the stunning growth in the sector (keep in mind that Microsoft, Apple, et al. put up with this kind of thing all the time):

Although I and many attorneys in the open source industry have long been concerned about patent challenges to open source companies, this case appears to be the first by patent trolls against an open source licensor. The open source industry provides a tempting target because of its rapid growth. This morning, Eben Moglen at the Software Freedow Law Center Seminar on FOSS issues noted that Brad Bunnell of Microsoft joined Acacia on October 1 . According to news reports, Brad spent sixteen years at Microsoft at a number of positions which included General Manager, Intellectual Property Licensing. http://biz.yahoo.com/bw/071001/20071001005590.html?.v=1

Eben raises the intriguing question about whether these incidents are related. Given the time that it takes to prepare a patent lawsuit, Brad’s hiring probably did not effect the filing of this lawsuit. However the hiring may indicate the addition of a new business line for Acacia: suits against open source companies. Steve Ballmer’s recent comments about Red Hat’s obligation to pay Microsoft for alleged use of its patents makes this lawsuit and the timing of the move interesting.

Matt Asay points out a list of coincidences:

* One or more former Microsoft licensing execs join Acacia or one or its companies;
* Ballmer makes his most recent statement regarding Red Hat;
* Almost the same day, Red Hat (and presumbably Novell) receive notice of the alleged infringement from IP Innovation (Acacia);
* Before either company has a chance to consider the letter and respond, IP Innovation files its lawsuit in Texas;
* Novell changes all of its IP indemnification the same day (which it has named “Technology Assurance Program” as contrasted with Red Hat’s Open Source Assurance Program Novell apparently isn’t interested in assuring open source, just technology ;-);
* Novell’s new program notes a change in the Microsoft/Novell deal that covers GPLv3 code distributed by Novell for downstream recipients.

Hmm….I forget sometimes who is on which team, but it certainly seems like two sides have been conspiring on this, and I don’t mean IP Innovation and Microsoft (which is almost a given).

Stephen Walli (who was still at Microsoft when the SCO suit was launched) gives some advice that I couldn’t agree with more: Take a deep breath. Be calm. He continues:

The U.S. Supreme Court continues to involve itself in the broken patent system. The Linux Foundation and the Open Invention Network are both geared for this particular fight. I have confidence that the Groklaw community will step into the breach of reporting and investigation again. IBM, Intel, and HP have a vested interest in the outcome, and nobody plays IP games the way IBM does. Over the next few weeks, lawyers will come together behind the scenes from all the interested parties on the defending side. Hopefully egos won’t be too large, and a coherent plan of negotiation will emerge.

I’m sure some former colleagues at Microsoft are excited. Mr. Smith and Mr. Ballmer most assuredly. But just as with the SCO Group litigation, there is no reason to celebrate. They shouldn’t confuse this with “the way things actually get done.” Pax.

I do find it interesting that Acacia went from Apple to Red Hat / Novell, when Microsoft surely would have been a much more compelling target from a business perspective. It becomes a simple case of follow the money from there. More information will come out of this in the coming weeks and months, so staying calm and focusing on what’s important is surely the correct course of action.

–jeremy

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Earlier this month, Ballmer reiterated his stance on patents and Linux:

Microsoft chief executive Steve Ballmer has warned users of Red Hat Linux that they will have to pay Microsoft for its intellectual property.

“People who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us,” Ballmer said last week at a company event in London discussing online services in the UK.

Red Hat quickly fired back:

Red Hat is assuring its customers that they can continue to deploy its Linux operating system with confidence and without fear of legal retribution from Microsoft, despite the increasingly vocal threats emanating from the Redmond, Wash., company.

“This provides customers with assurances of uninterrupted use of the technology solution. Protecting our customers is a top priority, and we take it very seriously. Our confidence in our technology and protections for customers remains strong and has not wavered,” the blog posting said.

While many people thought Ballmer was just continuing his FUD campaign, a scant couple days later an IP infringement lawsuit was actually filed:

Plaintiffs IP Innovation and Technology Licensing Corp. claim to have the rights to U.S. Patent No. 5,072,412 for a User Interface with Multiple Workspaces for Sharing Display System Objects issued Dec. 10, 1991 along with two other similar patents.

The case has been assigned to U.S. District Judge Leonard E. Davis.

You have to find it ironic that “IP Innovation” is suing based on something seemingly obvious that was patented in a 1991 by Xerox. Things get interesting from there though. It seems IP Innovation LLC is a subsidiary of Acacia. Looking at Acacia closer, you see:

In July 2007, Acacia Research Corporation announced that Jonathan Taub joined its Acacia Technologies group as Vice President. Mr. Taub joins Acacia from Microsoft, where he was Director, Strategic Alliances for the Mobile and Embedded Devices (MED) division since 2004.

and

Acacia Technologies Names Brad Brunell, Former Microsoft General Manager, Intellectual Property Licensing, to Management Team

Mr. Brunell joins Acacia from Microsoft, where during his 16 year career he held a number of management positions, including General Manager, Intellectual Property Licensing.

So the SCOX trial isn’t even officially over and we already have a company with large Microsoft ties filing a clear patent troll case against Linux. You think they’d at least hide the connections better this time. It should be noted that IP Innovation appears to have previously gotten some money out of Apple for this, so it’s not simply aimed at FOSS. How much of this are we going to have to go though until the system is actually fixed? Too much. Let the SCO II games begin.

–jeremy

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