A two-year-old internal memo from Hewlett-Packard predicted that Microsoft would soon launch patent-infringement suits against companies that distribute open-source products such as Linux and Apache, according to a Joe Barr story at NewsForge. (The article reprints the memo in full.) The memo is clearly based on statements made by Microsoft negotiators during a patent licensing negotiation with HP.
My first reaction to the story was that this was just a negotiating ploy by Microsoft, to scare HP into granting better patent licensing terms – an implicit threat to sue HP if you they rejected an offered deal. But after reading the whole memo, that seems unlikely. Apparently the eventual agreement did not protect HP against the threatened suits; so raising a false alarm about such suits would have made the negotiation harder for Microsoft, not easier.
Another possibility is that Microsoft really did intend at the time to file suits. If so, the question is why, two years later, no suits have been filed. Slashdot posters suggested that the SCO-IBM suit is providing the FUD (fear, uncertainty, and doubt) about open-source that Microsoft was hoping to create with its suits, rendering a Microsoft suit unnecessary. But if some FUD is good for Microsoft, why isn’t more better?
Perhaps Microsoft changed its mind, because it couldn’t find a strong enough patent to assert, or because it feared patent-infringement countersuits from the intended targets of its litigation. This one also seems unlikely. If Microsoft’s goal was to create FUD and run up a defendant’s litigation expenses, then even an iffy patent would suffice, and Microsoft would have no trouble at all finding a patent to use. And if the goal of a suit was just to create FUD, then it wouldn’t much matter who they sued, so they would certainly be able to find somebody without a big patent portfolio to go after.
Most likely, the lawsuit threat was a ploy, designed to create FUD at HP about its use of open-source products. And the HP memo is evidence that it was working; the author clearly wanted to reduce HP’s “exposure” from its use of open-source.