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> Some years back, one criticism I heard against Microsoft was that they threatened to assert patent infringement against Linux, but refused to tell the alleged

> Some years back, one criticism I heard against Microsoft was that they threatened to assert patent infringement against Linux, but refused to tell the alleged offenders which particular patents Microsoft considered to be violated. And the end result was Microsoft (imho) legally extorting some Linux vendors for licensing fees. How would this work in court? "We're charging you with breaking some laws, but we're not going to tell you which ones. How do you plead?"

Harimwakairi 6y ago
It doesn't work in court. FUD works in business because people are (necessarily) risk-averse. If a giant company whose legal team is larger than your entire payroll says they will find some way to sue you for doing X, are you really going to gamble your business to do it? Even if you're fairly sure they're blowing smoke, that's a hard decision to make.
dllthomas 6y ago
https://en.wikipedia.org/wiki/The_Trial https://en.wikipedia.org/wiki/The_Trial
- AdmiralAsshat 6y ago
  By astonishing coincidence, I happen to be reading that right now! https://www.kobo.com/us/en/ebook/the-trial-25 https://www.kobo.com/us/en/ebook/the-trial-25
kmeisthax 6y ago
They'd be laughed out of court in a summary judgment. A patent infringement claim requires, at bare minimum, alleging that a patent has actually been infringed. So you have to actually say what patents you own and are alleging infringement of. Obviously, Microsoft disclosed what patents they believed were being infringed when they decided to actually take people to court. They decided not to disclose that when negotiating licenses, which is actually legal. Contracts can include non-disclosure agreements that would prohibit you from telling Linus what parts of Linus to change, and you're allowed to vaguely threaten people as a negotiating tactic, as long as there actually exists some underlying infringement which Microsoft could reasonably have believed to have occurred. (Otherwise, it would be extortion.) Patents are public information, including what patents Microsoft has been issued, so the law would assign device manufacturers the burden of determining which of Microsoft's patents have or have not been infringed by their products. Microsoft is not legally required to do their work for them and tell them what they're infringing. All of the parties involved could have conducted patent reviews of the Linux kernel or AOSP to find and remove the infringing bits Microsoft was suing over. Instead, they decided to individually settle because the engineering and legal resources required to fix Android's apparent patent problem were less than just paying Microsoft for a license.

Harimwakairi 6y ago

It doesn't work in court. FUD works in business because people are (necessarily) risk-averse. If a giant company whose legal team is larger than your entire payroll says they will find some way to sue you for doing X, are you really going to gamble your business to do it? Even if you're fairly sure they're blowing smoke, that's a hard decision to make.

dllthomas 6y ago

https://en.wikipedia.org/wiki/The_Trial https://en.wikipedia.org/wiki/The_Trial

AdmiralAsshat 6y ago
By astonishing coincidence, I happen to be reading that right now! https://www.kobo.com/us/en/ebook/the-trial-25 https://www.kobo.com/us/en/ebook/the-trial-25

kmeisthax 6y ago

They'd be laughed out of court in a summary judgment. A patent infringement claim requires, at bare minimum, alleging that a patent has actually been infringed. So you have to actually say what patents you own and are alleging infringement of. Obviously, Microsoft disclosed what patents they believed were being infringed when they decided to actually take people to court. They decided not to disclose that when negotiating licenses, which is actually legal. Contracts can include non-disclosure agreements that would prohibit you from telling Linus what parts of Linus to change, and you're allowed to vaguely threaten people as a negotiating tactic, as long as there actually exists some underlying infringement which Microsoft could reasonably have believed to have occurred. (Otherwise, it would be extortion.) Patents are public information, including what patents Microsoft has been issued, so the law would assign device manufacturers the burden of determining which of Microsoft's patents have or have not been infringed by their products. Microsoft is not legally required to do their work for them and tell them what they're infringing. All of the parties involved could have conducted patent reviews of the Linux kernel or AOSP to find and remove the infringing bits Microsoft was suing over. Instead, they decided to individually settle because the engineering and legal resources required to fix Android's apparent patent problem were less than just paying Microsoft for a license.