Yeah, Steve, sure…But I’ll keep my eye on the ball anyway…(updated)

Over at Information Week, Paul McDougall has a piece that lays out some (but curiously not all) of the facts concerning the close ties between Acacia Research, who is now suing Red Hat and Novell, and Microsoft. He starts quite directly:

Less than two weeks after it hired a senior intellectual-property executive from Microsoft (NSDQ: MSFT), a California-based firm has filed a patent-infringement suit against Red Hat and Novell (NSDQ: NOVL), distributors of open-source software that Microsoft has long claimed violates its patents.

and further reminds us that Steve Ballmer of Microsoft, just last week said:

“I expect they would like to go to the open source world as well,” Ballmer said while speaking at a Microsoft event in the U.K. Microsoft claims Linux and other open source programs violate more than 200 of its patents.

I find it a little odd that Paul makes no mention of Groklaw’s coverage or commentary on this issue, especially as Groklaw notes that there were actually twothree Microsoft execs that have recently moved over to Acacia, not just the one, Brad Brunell, that Paul mentions:

BUSINESS WIRE – July 26, 2007 04:00 PM US Eastern Timezone

In July 2007, Acacia Research Corporation announced that Jonathan Taub joined its Acacia Technologies group as Vice President. Mr. Taub joins Acacia from Microsoft, where he was Director, Strategic Alliances for the Mobile and Embedded Devices (MED) division since 2004. Mr. Taub developed strategic initiatives…

Now, of course Microsoft realized that they would be tied to this lawsuit, so they have tried to build a shield of plausible deniability between themselves and the legal action itself.

A Microsoft spokesman said via e-mail that “Microsoft is not a party to Acacia’s lawsuit against Red Hat and Novell, nor are we involved in any way in this litigation.” Acacia officials weren’t immediately available for comment. Novell and Red Hat have yet to file a formal response to the lawsuit

This indicates that Microsoft has learned somethings from the SCO lawsuit. We will probably not find a secret PIPE deal channeling money to Acacia from a Microsoft-friendly venture capital firm, as was the case with SCO. (Thanks, Groklaw!)

However, Microsoft has not learned other things, and it will be very interesting to see how this unfolds. Disastrous for SCO in their trial was everything that came out in court. And it is continuing bad news for SCO: the wealth of information from SCO’s bankruptcy filing is going to be a boon to any of the shareholders, should they decided to sue the former management.

So at the very least, I think Microsoft will have insulated itself from Acacia, and they will have thought through what will come out in the course of the litigation. So, a smoking gun is unlikely. However, there is one thing I think they hadn’t counted on, and that’s what I would call the Dmitry Sklyarov effect:

The ability of an unjust law to generate opposition to its existence is directly proportional to how often that law is used, and the media coverage of the trials in which the unjust law is used.

In the Sklyarov case, Adobe initially supported the prosecution of Sklyarov. However, later, when they realized how unpopular the action was, they changed their mind quickly. The anti-DMCA movement was energized by the Sklyarov prosecution. One evidence of this is that supporters of the DMCA now, post-Sklyarov, cite the fact that Sklyarov (and others, such as Ed Felten) were acquitted as evidence the DMCA is a good law. (Strange to cite examples of a law not working in its support, isn’t it.?) The Sklyarov case quitely ended with Elcomsoft being acquitted in December, 2002.

That Microsoft has insulated themselves from this action will not be too important, in fact it could end up being better. Instead of this trial teaching everyone that Microsoft is a bad, power-hungry monopoly (everybody knows this anyway!) this trial becomes a tool for showing everyone just how bad software patents are. As Groklaw and others have noted, the patent in question is a really bad one, vague, poorly defined, a poster child for patent reform:

You might recall the patent was used in litigation against Apple in April 2007, and Beta News reported at the time that it’s a 1991 Xerox PARC patent. But ars technica provided the detail that it references earlier patents going back to 1984. Appropriately enough. If you use Google to search for “IP Innovation LLC 5,072,412” you’ll find more. Note that it’s IP Innovation, not plural. There is another company using IP Innovations. I gather Apple paid them to go away in June.
This patent has been pointed to as an example of the need for patent reform. Now, Patent Troll Tracker claims that IP Innovation LLC is a subsidiary of Acacia. More here. Law.com did a story on Acacia in February, “Extreme Makeover: From Patent Troll to the Belle of the Ball.”

And that’s exactly what this case will become: a loud advertisement for patent reform, and that’s exactly why those who care about FOSS will want to get every detail of this case out there, in front of everyone. The ties to Microsoft, while interesting are, in fact, a distraction. So let’s keep our eye on the ball (software patents) and not just one player (Microsoft).

Those who oppose FOSS, the IP maximalists, will have exactly the opposite goal: they will want to hide and obfuscate and confuse. They will file everything under seal that they possibly can, while all the time claim they are being tried in the media, the way some have cried about “SCO getting linux Mob justice”. But there is a big difference that we can make this time: instead of one individual case, of one bad troll in particular, this case needs to be seen as a refutation of a very bad idea (that is, software patents) in general.

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Yeah, Steve, sure…But I’ll keep my eye on the ball anyway…(updated)

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