Microsoft and Linux trade patent words in Europe

USification-of-EU play

Microsoft has teamed with General Electric to petition European regulators on a fundamental principle that will continue to drive a wedge between the company and open source supporters.

The duo filed an amicus brief arguing that regulators should believe in the existence of patents in software and that these patents should then be enforceable in European Union courts.

The filing is important because Microsoft is arguing for a continuation of status quo: the ability to turn ambiguities in a part of existing EU law over software patents to the favor of patent holders by bringing and winning cases. Patent holders could then argue for future enforcement based on that case law.

It's a type of creeping enforcement that open-source advocates oppose and have argued will turn Europe into the kind of costly patent battle-ground that characterizes the US.

It opens the way for expensive and opportunistic legal actions and ambulance-chasing lawsuits of claimed patent violations, which typically favor those with the lawyers and money to win.

Often, the mere threat of action is sufficient to make companies settle with litigants.

Worse, patent holders can argue they should be allowed to charge others for invoking a method in a piece of software or on a system because there are similarities with their patent. Patent holders are, therefore, locking down the market stifling innovation.

Microsoft's US legal action, quickly settled, against GPS device manufacturer TomTom illustrates this: Microsoft said TomTom had violated eight of its patents, three of them for FAT - a widely implemented technology but something Microsoft has patents on. Eventually, TomTom agreed to pay royalties to Microsoft to license the three FAT patents.

This produced two responses. Linux advocates called on engineers to rip out FAT from systems. They also posted Microsoft's FAT patents to a web site for peer review by the legal community and patent experts, to help find prior art that could potentially invalidate Microsoft's claim.