A Patent Lie
WHAT a difference 16 years makes. Last month, the technology world was abuzz over an interview in Fortune magazine in which Bradford Smith, Microsoft's general counsel, accused users and developers of various free software products of patent infringement and demanded royalties.
Context & Ripple Effects
This editorial lands four weeks after Bradford Smith told Fortune that free software violates Microsoft patents and demanded royalties — the first time Microsoft had put a number-bearing patent assertion against Linux and its users on the record. The reaction was immediate and hostile: Brier Dudley called it 'Patent Armageddon,' and Mark Pilgrim branded the move 'Outrageous' in one of the earliest developer rebuttals.
The Times is now weighing in editorially, and it frames Smith's claims through precedent: its March coverage of how MP3's tangled patent origins spawned years of litigation supplies the cautionary arc — vague assertions held over widely deployed formats end in courtroom gridlock, not licensing revenue. The paper also points to the fact that Smith declined to identify which patents are actually infringed, making the royalty demand untestable as stated.
First-order effects
- Microsoft faces a credibility problem on its own terms: an unnamed list of 235 asserted patents cannot be examined or rebutted, so corporate customers evaluating Linux must weigh an unverifiable legal threat rather than a concrete infringement case.
- Free-software developers and distributors gain a mainstream-media ally; the editorial pressure raises the political cost for any vendor that follows Microsoft's royalty-demand template without disclosing the underlying patents.
Second-order effects
- Rival software vendors must pick sides visibly — either echo Microsoft's patent-assertion posture and risk the same editorial backlash, or publicly disavow it, turning patent rhetoric into a competitive differentiator among enterprise suppliers.
- Corporate Linux buyers get new leverage: if the asserted patents remain undisclosed, procurement teams can press Microsoft to substantiate claims before paying, slowing any licensing program before it starts.
Third-order effects
- If undisclosed patent assertions become standard practice against open-source stacks, the likely endpoint mirrors the MP3 saga — a decade of litigation overhead priced into every deployment — pushing the industry toward demands for patent transparency or reform of how patents are enforced against interoperable standards.
The trend: Enterprise software competition is shifting from feature and price battles to patent posturing, with incumbents asserting IP against open-source alternatives faster than courts can test the claims.