| Thursday May 26th 2016

Microsoft and a “patent checkmate” of my dreams

Microsoft tried to auction off some patents that they claim relate to Linux. Patent trolls could have bought them. Instead Open Invention Network (OIN) got them. Tux path MicrosoftWhy would Microsoft wish to get rid of 22 patents that it presumably could sue Linux over? Let’s try to imagine what might have happened.

Let’s pretend you are Microsoft, and you want to be evil. Of course, Microsoft never would be. They are internationally known for fair dealing with all their competition, particularly Linux. But let’s pretend.

OK. So you are Evil Microsoft and you decide it’s too difficult and dangerous to sue Linux yourself. Antitrust annoyances, counterclaims, and PR and all that. What to do with that patent portfolio to really cause trouble for Linux, without having your fingerprints all over it?

Eureka! You could sell the patents to patent trolls, and let *them* be the bad guys. Is that not perfect if you are evil? Not that Microsoft would ever be evil. We all know there is a New Microsoft in the land.

But in our imagination, let’s say that because that is your wicked plan as Microsoft Evil, you set up an auction without offering OIN or any Linux players a chance to bid. You only invite folks who don’t have a product to sell, only entities that collect patents, or what is known as “non-practicing entities” a/k/a patent trolls, who are immune from counterclaims against their products, because they don’t have any.

Would that not have been the perfection of evil? You are positively drooling. And who’d ever know it was evil you who was really behind it?

Wait!! Over the hill you see… no, it can’t be! Here comes Allied Security Trust, or AST, riding in on a white horse and scooping up the patents you tied to the railroad tracks, and then selling them to OIN, whose very purpose in existing is to protect Linux! Linux is saved! Curses, you cry out! Foiled again!

Would that not be a wonderful imaginary tale? And here is the first paragraph of the press release from OIN, which will enable you to decide how far off my wild imagination really is:

Open Invention Network (OIN), a collaborative enterprise that enables innovation in open source, today announced the acquisition of 22 Linux-focused patents that were marketed and sold by Microsoft. The patents were recently purchased by Allied Security Trust (AST) from Microsoft to ensure the patents did not fall into the hands of non-practicing entities (more information on non-practicing entities is available at http://en.wikipedia.org/wiki/Patent_troll, among other sites) that could seek to assert the patents against Linux products. OIN subsequently acquired the Microsoft patents from AST.

Update: More details from CNET’s Ina Fried, including a statement from Microsoft. They meant to do it:

In an interview, [OIN’s] Bergelt said that his organization was not invited by Microsoft to directly participate in the bidding for the patents, raising the specter that Microsoft was more interested in selling to someone that might have targeted Linux as opposed to just maximizing the sales price for the patents. “We were not offered an opportunity to participate in the bidding for this portfolio that Microsoft was selling,” Bergelt said. For its part, Microsoft confirmed that it sold the patents to AST in July, but declined to comment on the terms of the deal. Microsoft said that the patents were indeed ones that it had acquired several years ago in a deal with SGI. “These patents were deemed to be non-core to our business and non-essential for our IP portfolio,” Microsoft spokesman Michael Marinello said in a statement.


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