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When companies, particularly software companies, file patents to protect their IP and themselves do they also have responsibility to protect the users of their software from litigation?

I ask this in light of recent revelations that Microsoft in their recent negotiations with Sun reserved the right to sue Open Office users. This has stirred up a lot of controversy, particularly speculation about the intentions of the two parties involved here. Of course the main thing people want to know is will Microsoft sue users of Open Office? What can be done to prevent of mitigate that risk? Why did Sun agree to this?

Honestly, no one knows wether or not Microsoft will sue users of Open Office. The only thing we can do here is speculate. For my part I’ll go out on a limb and say I think it’s unlikely. For one it would be a PR nightmare and Microsoft knows it. In fact the timing of this revelation is probably even unfortunate from Microsoft’s position as even in the above article it mentions their recent outreach to Open Office developers. Some people, like Tim Bray, think that a strong developer community around Open Office will prevent a lawsuit. Well, I guess I agree but I think we’re already there. As to why Sun agreed to this it goes to my original question about the responsibility companies have to their customers. Could (would) Microsoft publicly state they won’t sue? C’mon, that’s just childish.

Open source software, including Open Office, is provided without warranty. The other part of this agreement protects the users of the commercial package Sun sells based on Open Office, Star Office. Sometimes in agreements between software companies there are agreements to not litigate each other over potential patent violations held by either party. This makes a lot of sense given the loose nature of patents granted these days around software for what are arguablly obvious inventions. There is no telling in any software program how many patents you might be potentially violating, even ones that haven’t even been filed yet. Coming to joint agreements between partners to not litigate each other over this stuff makes perfect sense. The problem is that in this case it seems like Star Office could have been excluded from litigation without mentioning Open Office at all. From a PR perspective that would have made a lot more sense for both parties. However I’m not a lawyer so there was probably very specific concerns that this addressed by adding this language.

In any event it’s a black eye for both parties in my opinion. This week anyway. My prediction is this will all blow over and ultimately amount to nothing, it’s an interesting issue though. If you’d like a more in depth analysis of this from an insider’s perspective at Sun try Danese Cooper’s post. The botttom line? It looks like this clause was added with the intention to protect Sun’s end users. Ultimately that was the right thing to do no matter the PR headaches around the specific language.

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  1. Christopher Solomon
    I have seen recent news passing about of not only these two, but several companies now allocating resources, departments, etc. for the sole purpose of hunting down what the perceive as patent infringement by other companies in these “loose” areas such as software and new technology (those that traditionally evolve much faster than laws and such can keep up). The other companies are typically much smaller and do not have the money to fight such a battle, so they settle for whatever licensing agreement is offered up. Some companies actually see this as a viable revenue stream….just hunt and sue!!! I saw recently a story of some company that claims now (all these many years after the web continues to mature) that they own the patent for the idea of video and pictures presented over the web! Does that mean they will go after Real, or Microsoft, or even SAP? No. They go after the “little guys”. But not to get off in that discussion….the point here is that if this starts to “frighten” companies and/or developers, you get the effect of no one wanting to “make a move” for fear of being sued later by someone making a claim on their ideas, inventions, programs, etc. or on the other side, they start to patent any and everything they can think of. This can really impact the creativity and foundation behind open source projects. Strange days. We’ll see how it all plays out.

    Sure wish I would have patented the “if…else…end” logic long ago! hahaha

    CS

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