[Updated (16-May-2007, 16:00): Andy Updegrove weighs in brilliantly with his analysis. Also an interesting CNet article from Stephen Shankland.]



[Updated (15-May-2007, 15:21): Adding a few links beyond the set in the first paragraph. PJ at Groklaw, Linus's comments, and Tim O'Reilly weighs in. The Open Invention Network responded with a press release. And then there's Tim Bray's pithy four words along with Jonathan's commentary. So public opinion is pretty unanimous. In the historical words of Bill Gates, "that’s the dumbest fucking idea I’ve heard since I’ve been at Microsoft.”]

I thought I'd said everything I had to say on the topic of Microsoft and patents and open source weeks ago, and would leave it to better writers than I to comment on the latest news. But I can't. (Here is the excellent commentary from O'Grady, Asay, and Augustin, and the original Fortune article and Parloff's additional blog commentary.)

First, to reiterate, as a customer I am completely uninterested in buying something from a vendor, and then paying every other vendor in the space a license to their possible additional but unproved patents. I'm not even interested in licensing their PROVED patents. Patents are vendor to vendor discussions. To make sure the license wonks in Microsoft Legal and Corporate Affairs understand what I mean: As a customer, when I buy my Xerox copier, I do not intend to additionally license patents from HP, Canon, Epson, or ANY other copier manufacturer. I buy solutions from my vendors, and I expect value for money. I am uninterested in your protection shakedown. Move on. The bullying of customers stops now.

Second, why wait for Gutierrez (Microsoft Licensing Director) to identify the patents?

There are 6723 patents in the USPTO searchable database with an assignee name of "Microsoft". Of that, 656 use the word "kernel" in the patent somewhere.

Ohloh.net claims there are 2402 contributors to the Linux 2.6 kernel, another 1433 Gnome contributors, and 422 OpenOffice.org contributors. That's a starting number of 4257 developers that have a selfish vested interest in understanding this situation and that with a little guidance may have the few hours to spare to tackle a particular individual patent claim that falls into their area of expertise. That doesn't include all the other developers working on kernels and UI and office suites that may or may not be open source. If a site like Groklaw posted a searchable "Microsoft Patent Wiki" such that developers could start to register individual interest in particular claims on particular patents and start to aggregate and co-ordinate the information to tear down bad claims, we could help the USPTO (and Microsoft) clean up the bloat and mess.

You see, intellectual property law is based on an analogy to real property, i.e. LAND. But unlike real property divided into "claims", each with clear real boundaries, intellectual property claims may not be real. That's the problem with analogies. But claim by claim, on patent by patent, collectively the information base could be built to begin to file requests for declaratory judgments. And it would be important to ensure each is filed separately on each claim -- not collectively on each patent. Death by a thousand cuts.

We don't need to gather together in a geographical location to protest such abuses of the system anymore. This isn't the era of the equal rights or civil rights movements. Nor do we need to wait for the Department of Justice to fret about whether they have a concrete case against an economic bully. We have the web. We could crowd source the biggest patent case in history.

At the very least, the companies of the world feeling threatened could simply suggest to Microsoft's Friendly Patent Licensing Team that they're going to wait to see what remains of the claims before entering "contract" discussions.

Microsoft needs to get back in the business of building exceptional solutions to customer problems, instead of chasing a 1990s dream of IBM's secondary revenues from hardware patent licensing, or worse yet threatening those same customers.

[Disclaimer: Microsoft is a client. But I swear I'm reconsidering that decision. It's unclear to me that the mortgage payment is worth this much aggravation.]