Microsoft claims patents on Open Source code

The Wall Street Journal today reported that Microsoft has claimed that 235 of its patents are being infringed upon by the Free and Open Source Software (FOSS) movement, specifically mentioning the GUI, e-mail programs and Open Office as violators.

My first thought was "how did Microsoft get patents on GUI and e-mail programs?" I didn't know you could patent an idea that you "borrowed" from someone else...OK - maybe I'm being too harsh on Microsoft.

My next thought was "What took them so long?" These open-source projects have been around for quite a while - why did they wait until now to claim infringement? Maybe they thought that the best way to fight the Open Source movement was to ignore it, and that by claiming patent infringement would lend credibility to the movement. It has now gotten to the point that they cannot ignore the momentum of Open Source (actually, it got to that point quite a while ago...it is just like MS to play catch-up with the rest of the industry).

Of course, Microsoft has been on the other end of this battle many times. Gee, the first to come to mind is the Zune...doesn't that infringe on some patents by Apple? A large company like Microsoft is happy to enter the market knowing they are infringing on patents, and will simply take the "oops - my bad" approach when sued later for it.

I have to admit that I have not yet jumped completely into the Open Source world. I like Linux, and I actually have Open Office installed on a couple of computers at home, but I have yet to really dive into the Open Source movement with both feet. I am not a Microsoft hater, but I certainly would not personally like to ever work for them.

So, I consider myself a fairly objective outsider in this battle. I love to watch the open-source community eat into the strong-hold that Microsoft has on the operating system market, as well as any other market that they can gain a foothold in.

Having said all of this, the most surprising comment from this short article, and possibly the most troublesome comment, was from the legal counsel to the Free Software Foundation identified as Eben Moglen. He was reported to have said that software in general is a mathematical algorithm, and as such is inherently non-patentable.

We all know that the patent system is in trouble, and needs an over-haul. However, having spent many years in the software world, I believe that software patents do indeed provide some protection for small start-up companies. Not necessarily as a deterrent to large companies, but rather as a recourse if/when the large company infringes on the small companies technological patent. If we do away with software patents altogether, then the software industry as a whole will suffer. Innovation will be stifled, and the companies like Microsoft will continue to dominate in their non-innovation mentality.

Maybe Eben should re-think the defense for Microsoft's contention. If they win using the "software is not patentable" approach, it will increase Microsoft's stronghold over the competition rather than weaken it.