State of the FUD, day 3, morning

This morning, more “coverage” (being generous here). First USA Today tells us that “Microsoft details patent breaches." This seems to be a new definition of the word “detail”, one that I am not quite familiar with. Detail usually means “extended treatment of or attention to particular items”. The definition of detail for the USA today piece appears to be different. No details on patents. Just “counts”. Moreover, the article indicates that

No, I think frustrated is the wrong word. It has an incorrect meaning for what those of us watching this debacle unfold might think, well, me anyway. The most appropriate word would be skeptical. I am skeptical about the dubious allegations of patent infringement, as the allegedly injured party refuses to divulge the details of their alleged injuries. They won’t tell us patent numbers, and point to allegedly infringing elements. If they are unwilling to indicate them in specific detail, which they have not, then there must be no infringement going on, and what we have is marketing by legal threat. Of course, the coverage continues. In Computer world, at least the NZ site, we see “Open-source users, companies scoff at Microsoft threats”. Scoff is again, an incorrect word. Heaping derision on something that deserves it (an operational definition of “scoff”) is not what is being done. Again, this is simple skepticism. It doesn’t help that the piece opens with

Nobody (sane) is thumbing their nose at Microsoft. I am personally quite skeptical over the dubious infringement claims. Add to this Microsoft evading indicating what is allegedly the infringing code/design and which patents they own, with specificity, that are being allegedly infringed … That is, they claim there is infringement, yet the fail to let the world know what is allegedly infringing with enough specificity that it can be seen clearly. Usually this is an indication that the patent claims are weak, would not withstand a challenge, so they will hold them tight until they are ready to pounce. Throwing 235 against a wall in the hope that 1 will stick. If anything, this should be a wakeup call to legislators everywhere, that the patent system is being badly abused. Specifically the threat of litigation is being used as a competitive weapon when the group cannot beat the competitor in the marketplace. A quote from the article is spot on

Yup. Marketing by intimidation. Without specific patent numbers and pointers to alleged infringing code/design, well, the question of infringement is academic at best. Another quote sounds a somewhat more ominous note, something I had pointed out in my original post. This opens Microsoft up for a number of counterstrikes. Some of which could be devastating to them. Imagine if a company, heavily bought into linux, making billions of dollars a year, with a huge patent portfolio, sees Microsoft attempting to get some traction in this. What do you think will happen? Hint: What did Redhat and Novell do when SCO sued IBM and others? They were compelled to protect their interests. But, as noted, it gets worse

Now imagine 3 or 4 such large companies, all bought into Linux as a platform, all making huge profits off of it (well the stuff around it), with huge patent portfolios. Imagine governments, bought into it due to its TCO and security advantages. Now someone explain to me, precisely, how this is not going to blow up on Microsoft? There is one exit strategy I can see that minimizes loss to them. Every other strategy has huge downsides, with no corresponding upside. A sane strategy for this is to de-escalate, back down, take their lumps, and figure out how to make better products than their competition. I see no other strategy that does not include a massive loss of goodwill, potential significant loss of value of an alleged IP portfolio, a massive counterattack on the part of vested interests that have defensible patents. Remember the Alcatel MP3 bit? Or Eolas? … You don’t need many patents. Just a few really good ones. Here are their strategy options:

1. sue end users. Does this work? Will they collect against their alleged “injuries”? They will wipe out any and all goodwill, assuming there is any left. Again, how is this not a massive loss for Microsoft? Upside, a few hundred dollars on a dubious set of patent infringement allegations that an end user would not have the wherewithal to defend again. Downside, bad press for years, likely a few new investigations into them.
2. sue small companies that would settle quickly. This is a PR nightmare for them. No matter how they try to paint this, they will be seen as a bully. All you need is one company to be rolled over, to go out of business, and a nice vocal CEO, who goes and tells several millions of his friends and audience members about what happened … tells his congress-critter about this …. Again, how is this not a massive loss for Microsoft? Upside, a few thousand dollars on a dubious set of patent infringement allegations that a small company would not have the wherewithal to defend again. Downside, bad press for years, likely a few new investigations into them.
3. sue mid-size companies that they believe would settle quickly. This is a PR nightmare for them. No matter how they try to paint this, they will be seen as a bully. These are the companies seen as critical to the market for Linux products and services. So the big guns, seeing their customers under attack with a set of dubious patent infringement allegations, goes on the offensive. With real patents. Again, how is this not a massive loss for Microsoft? Upside, a few tens of thousands of dollars on a dubious set of patent infringement allegations that a mid-size company would not have the wherewithal to defend again. Downside, bad press for years, likely a few new investigations into them, and being the target of a real patent infringement claims. Injunctive relief is generally not easy these days, there is the four factor test that must be passed. Admitting to irreparable harm would be anathema for Microsoft, as they would have to acknowledge that they have no defense against the competition.
4. sue large-size companies. So the big guns, seeing their customers under attack with a set of dubious patent infringement allegations, goes on the offensive. With real patents. Again, how is this not a massive loss for Microsoft? Upside, a few millions of dollars on a dubious set of patent infringement allegations. Downside, bad press for years, likely a few new investigations into them, and being the target of a real patent infringement claims.
5. put down your weapons, take a step back, turn around, and walk away. You get a black eye, some others get to gloat. But your code, which has been demonstrated to infringe on other patents, is not held to heavy scrutiny. Because if it was … Hopefully sanity will return to them, they will realize the quagmire that they are about to leap into before they leap into it, and rethink their position very carefully.