Microsoft answers IP questions posed in LXer open letter

LXer Feature: 11-Dec-2006 Mid November, Steve Ballmer said "Linux"uses our [Microsoft Corp.] intellectual property" and "Microsoft Corp. wanted to "get the appropriate economic return for our shareholders from our innovation." Many people didn't understand what he really meant, among them the LXer editors. Therefore, LXer sent an Open Letter to the Waggener Edstrom Rapid Response team, and two weeks later, the answers are in (no pun intended). Check the full story for the answers a Microsoft Spokesperson gave us, which hopefully can answer some of our questions. [ Note: The questions may be a bit clumsy, since sending them was a rather impulsive action. - hkwint ]

So, here are the questions and answers:

LXer:  When speaking about intellectual property, what is meant? It can't be copyright, since almost all Microsoft Corp. software is closed source, which means people who haven't got access to the code can't have infringed the copyright. Moreover, copyright infringement would be easy to prove, since most of what Steve Ballmer calls "Linux" is open source. Therefore, can 'intellectual property' be put on par with 'software patents'?

MS:  Intellectual property generally refers to the four different ways that intangible assets can be protected. It does include copyrights, which are an important way that Microsoft protects its technology that is not simply limited to literal, executable code but also includes other copyrightable ‘expression’ in software, such as underlying design materials. Trademarks, trade secrets, and patents are other important types of intellectual property. Patents in the software industry are like patents in many other industries – innovations can be protected through patents that then provide a basis for licensing those innovations to others. Microsoft’s extensive patent portfolio has allowed for significant license agreements with other industry innovators, including: Novell, Cisco Systems, HP, SGI, Xerox, SAP and Siemens. These agreements permit the parties to cross-pollinate their development efforts with each others’ patented innovations, which results in making key innovations more broadly available across varying technologies.

LXer:  Since the general belief is software patents aren't enforceable in (amongst others) Europe, does this mean Microsoft doesn't have any Intellectual Property from a European perspective? For the shareholders Steve Ballmer was talking about, this would be very important information.

MS:  While software ‘as such’ is not patentable in Europe, innovations implemented in a computer can be patented. Put another way, just because an invention is embodied in software or other IT technology as opposed to a mechanical device or chemical process, does not disqualify that invention from getting patent protection. Microsoft, like many others, does have patents issued in Europe on such innovations. Intellectual property is an essential element of modern business development in Europe and elsewhere. Access to and exchange of intellectual property is essential for economic growth and development. Through access to and interaction with other companies’ technology and IP, it is possible to expand existing innovation and deliver new solutions for customers while retaining IP and encouraging future investment.

LXer:  Why does Microsoft Corp. never specify which Intellectual Property Linux infringes on? Is this because Microsoft Corp. doesn't know, is it because Microsoft Corp. is afraid its Intellectual Property isn't enforceable, or is there any other good reason for this? Why doesn't Microsoft Corp. tell to its shareholders for which Intellectual Property Microsoft wanted to "get the appropriate economic return"? This is important information for the shareholders.

MS:  Through our agreement with Novell, Microsoft is providing access to thousands of patents. As is standard with most companies in this and indeed other industries, we do not publicly list the patents that are applicable to a product or by a component. One of the benefits of patent agreements is that they allow freedom of action now and in the future. Novell’s products and Microsoft’s products change on a regular basis and conducting a complete patent analyses for every version of every product is costly and complex. As we’ve stated, we undertook an analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant which Novell and Microsoft agreed on for the benefit of our customers.

LXer:  If Linux infringes on the Intellectual Property, why hasn't Microsoft already tried to "get the appropriate economic return for our shareholders from our innovation." earlier? The shareholders could already have gotten the appropriate economic return for their investments already if Microsoft Corp. would have taken action, don't they?

MS:  Our priority has been to license our technology widely. It has taken us time to think through how to bridge two very different software licensing models through technical and IP collaboration. Microsoft has also had to evolve our thinking over time. From the announcement of our “open to all interested parties” IP licensing program in 2003 to increased collaboration with open source businesses like JBOSS, SugarCRM, XenSource, MySQL and Zend, we’ve been focused on meeting the needs of our customers and partners. Our agreement with Novell is another example of that.

I'll leave the commenting up to you.

Short update:
The readers of OSNews made some useful comments, which may be useful considering this answers.
-In answer 3, Microsoft says: conducting a complete patent analysis for every version of every product is costly and complex., while later saying in the same answer: As we’ve stated, we undertook an analysis of our patent portfolio. This seems a bit contradicting.  (Thanks Kiddo!)
Further, I noted, most readers which commented conclude, given the answers here, the Microsoft / Novell deal is a patent deal after all.
Last, I wonder if people still remember something Steve Ballmer of Microsoft said in November 2004, which is two years ago(!) now:
"Use Linux and you will be sued, Ballmer tells governments"