pools are very common in our industry. From a patent-licensing perspective, we don't draw distinctions between open-source and non-open-source technologies."
Though it's seeking reforms, Microsoft shows no signs of dropping its support for software patents overall. "How does a small company protect itself from a bigger competitor who can clone their ideas?" Kaefer said. Patents are a better legal mechanism than copyrights and trade secrets, he said.
But in reality, small companies are at a disadvantage when it comes to software patents, said Mark Webbink, Red Hat's legal counsel for intellectual-property matters. Instead, patents tend to be used by larger companies to cement their leadership position, he said, giving Microsoft as an example. Until 1994, Microsoft had filed fewer than 300 patent applications, Webbink said, but planned to file more than 3,000 applications in 2004.
Do patents protect or restrict?
"Their interest only came along once they had their dominant position, because patents gave them the ability to restrict competition. That's what patents are about: maintaining market share and preventing others from competing effectively," Webbink said.
He said Microsoft would have been in a very different position if companies had begun seeking software patents earlier. "What if Dan Bricklin had a patent on Viscalc, or Wordstar on PC word processors, or Harvard Graphics on presentation graphics? Where would (Microsoft) Word or Excel or PowerPoint be today? These patents would have only expired in the last five or six years," Webbink said. "For some of us, our word processors would still have been a pen or a pencil on a pad."
Kaefer disagreed with Webbink's contention. "Our first patent cross-licenses were signed in the early 1990s," he said. "I don't buy the Visicalc example."
But Webbink also noted that it costs at least US$5,000 for a company to review just one patent to judge whether the patent is valid and whether the company's technology infringes it. When larger competitors have thousands of patents, it becomes prohibitively expensive to conduct that review.
There's another financial incentive for big companies to keep up with patent grabs: Applying for one costs merely US$15,000, but defending a patent lawsuit typically costs millions of dollars.
Defending intellectual property rights is even expensive for Microsoft. At any given moment, it is typically defending itself against about three dozen patent infringement claims, Kaefer said.
Webbink did laud Microsoft's more cooperative tone, but in a LinuxWorld keynote address, he made two requests for Microsoft to demonstrate its goodwill in patent discussions. "First, make a public, written commitment they will not threaten individual developers with patent infringement claims." Second, Webbink said, "Leave customers out of this debate. If Microsoft has intellectual property that needs to be respected, come to the commercial companies. Come to me, come to Novell, come to our partners, but leave our customers out of the middle. It is the civil thing to do."
Kaefer said the requests were "interesting ideas we'd like to explore further," but preferred to interpret Red Hat's words more generally. "We like the fact that Red Hat has made those suggestions. That signals to us a desire to have a dialogue, and we're open to a dialogue."
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