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back to article Microsoft too busy to name Linux patents

First you get everyone riled claiming open source and Linux infringe on your patents, then you won't detail those patents. Why? The paperwork. Yes, Microsoft cited administrative overhead for not detailing the 235 Microsoft patents its chief legal counsel recently told Fortune exist in Linux and open source. Microsoft patents …

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Tom
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Publishing a bunch of numbers difficult?

"I could be wrong now, but I don't think so!"

Jeez... Someone KNOWS the numbers, because we have a count. They must be written down somewhere! Can't these guys use their own software?

Sorry, in times of past, it was quite common to cite patent numbers on products. Usually on engraved nameplates that said: "Covered by one or more of the following US patents: x,xxx,xxx x,xxx,xxx x,xxx,xxx (etc.)."

So now we can only assume that the patents have either expired, or don't exist!

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Anonymous Coward

Yet they were able to count them...

How is it that they have such a precise number of patent infringements, 235, yet they do not already have the patent numbers for each of them? If they had said something like "hundreds" or "dozens upon dozens" or something less precise, I might just buy this explanation. But 235 is a very specific number, and the fact that they mentioned it (and were even able to detail it out somewhat specifying which components of Linux and other Open Source software infringed on how many of the 235 patents) tells me that this is just a bunch of handwaving. The very fact that they counted them at all means that somebody already did the paperwork, so near as I can see, this excuse is bogus.

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Anonymous Coward

Understandable, but ....

The problem is not that they fail to detail hundreds of patents. The problem is that they refuse to detail even a single patent.

Surely if Linux fragrantly violates all of these patents, it should be easy enough to detail just one? Linux has the right to defend itself against this charge, but has no way of doing so until Microsoft details its complaint.

The best thing that can be done is to recognise that Microsoft is using the media as a marketing tool. Don't publish stories about these claims until they actually have something newsworthy. Microsoft saying we have 235 patents but we are not going to tell you what any of them are is hardly newsworthy. Until they prove it, it is only pushing FUD.

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Before this thread spreads too much FUD.

Readers please note that patents <> copyrights. Software patents (in the US) protect concepts and algorithms. Copyrights protect specific verbatim instances of those algorithms (aka source code).

This means (much like the notorious Amazon one click patent) that non-licensed users ARE infringing just by making use of the feature, even if they have implemented feature from scratch themselves without knowledge or a copy of the patent.

(How many readers will STILL probably claim that linux is innocent on the basis that it did not copy ms source code?)

I'd say it shouldn't be a real surprise that linux does infringe on the patents of ms and others.

The only ways to avoid a patent claim are:

1. Invalidate the patent.

2. Hide the fact you are infringing (patent owner is unaware of infringement, sometimes proprietary products can get away with this more often than open source ones).

3. Code around the patent by avoiding or modifying feature.

4. Get a license/permission for the patent.

5. Live outside the jurisdiction of the patent.

So assuming patent is valid, and ms knows that linux infringes, the open source community has to drop or change features, or otherwise get a license from ms.

Either way I'm in no hurry to find out which patents are in violation.

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How do you spell...

FUD?

Sabre tooths?

Scaremongering?

M$ doesn't own the world (like they think they do).

If it was serious, they would have had everything ready THEN went public THEN went legal. They haven't because of "administration" reasons. Crap and EVERYONE knows it.

Gotta love sensationalism at its best! :)

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I've really missed something...

Ok, well after SCOSource I guess it's an old question, but since when does the liability for patent infringement rest with a customer anyway??

Even *if* there are *valid* patents infringed in {random open source app}, why should anyone other than the person who added the infringing material care? That person would be liable, not Dave from Essex who downloads a knoppix CD, or an office that implements a few LAMP servers, that's just... Well, stupid....

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micro$oft

are just full of it. And "it" is not altruism, goodwill or fair business practice.

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Bronze badge

Bag of hot air?

Does anyone remember that one kid at school who would boast about what present he got for christmas/birthday, usually something cool that was expensive or rare, but when you asked them to bring it in to school or go round their house to see it they would make up some elaborate excuse for not showing you the toy?

You see that kid, that's Microsoft that is.

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wrong way round

perhaps they have realised that the infringements were them infringing unix concepts.

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Anonymous Coward

Too busy

Dear Bill,

I'm also too busy. Too busy to spend my time using your excuse for an "operating system". Is the BSOD patented ? Linux doesnt infringe that one ;-)

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It's all working nicely for MS.

The MS plan...

Keep up the publicity and let everyone know that MS want to kill linux in the courts at some unspecified time. The more publicity the more people will worry that maybe they can do it. That'll help scare people away from any major commitment to Linux.

This story keeps up the publicity nicely.

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Anonymous Coward

Surely you don't have to prove them all?

Microsoft only has to prove that one patent has been violated and the whole open source house of cards comes crashing down. The open source movement prides itself on the idea that it has the moral certainty of not stealing ideas. It only has to be shown to have done this once and it will do huge damage to the movement.

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Or indeed...

Windows infringing Apple Mac concepts.

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Naming the patents could cost them

I expect that Microsoft, like so many other technology companies, has a book value associated with their patent portfolio. While the term "Intellectual Property" is loosely bandied about without people knowing what they mean, a portfolio of patents usually *does* have an associated book value related to a hypothetical royalty stream.

Now, if MS list those patents, they will become subject to detailed scrutiny, and there is a very real chance that at least some of them would be challenged and subsequently invalidated. For everybody else, having worthless patents revoked is A Good Thing, but for Microsoft shareholders it would represent a reduction in the value of the company.

Now, even if none of the patents are revoked, the detailed scrutiny to which they would be subjected would mean a re-appraisal of the associated book value. Remember that MS's commercial position is based on the de facto monopoly of Windows and Office - but over the next few years this will be eroded, not only by alternative OS/Office Suite software but also (more importantly IMHO) by a future generation of appliance based "Software as a Service" (think Google Office). It's not there now, but the provision of basic IT services into a simple browser/JVM appliances must scare the crap out of them.

Whichever way you look at it, they've picked the wrong fight. Read Jonathan Schwartz on the subject ( http://blogs.sun.com/jonathan/ )

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RE: Before this thread spreads too much FUD

Linux "may" infringe on some MS patents. However many of these patents will have prior art making them invalid. Without a list of the patents that Linux allegedly infringes there is no practical way to get them invalidated or to code around them.The Linux/Open source community as a whole cannot consider licensing MS patents or hiding infringements.

Linux is inocent of infringing these patents at the moment!

The reeason; There has been no proof of infringement and there cannot be until the list of patents are published. The US legal system is based around the concept that a defendant is inocent until proven guilty.

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Title

Microsoft are claiming a specific number of patents (infringements?), which is 235. Clearly they have internal documentation/knowledge of exactly which ones they mean.

I'm sure I saw some recent comments that seemed to claim that if you don't defend against a known patent infringement, this failure to act invalidates the patent. I would assume that *if* this is correct, then some time limits must apply and there are probably other issues too.

Can someone that really understands this law please clarify this?

Note that an article explaining it might be better than just responding to this comment :-)

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Linex Fan boys

Or perhaps both sides are fully aware of which infringments there are, but also fully aware that Linex fan boys (like some writing here) will flood both compays with half baked amature legal mumbo jumbo in Linex's diffence. I find it very unlikly that at lease one of these 235 do not exist, otherewise it would be VERY bad press for Microsoft if they were found out. They would be in deep deep trouble with the courts and the patent office too.

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Ed

Dave from Essex...

isn't affected by this anyway, as Essex isn't part of the US. Yet.

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The three wise monkees

Speak no evil ,say no evil and hear no evil! and let everyone else fall on their swords!

That way we can steal and incorporate everyone elses ideas and concepts without paying royalties!

Aye , the truth hurts , but you have to find it first , because we aint talking

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Erm..

"Err.. that's one.." .. "That's one too I guess.." .. "yeah that one about that stuff..", "oh yeah there's one there too.."

"how many's that? 4? .. damn, that's no where near enough.."

"Oh there's another... that makes.. 235!"

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Anonymous Coward

Something doesn't add up

<<we spend $100m a year defending ourselves against patent lawsuits>>

If this is true, the legal filings would detail the patents in question. Or perhaps they spend $0 a year defending themselves against MS/Linux related patent infringements. In this case the deal makes no difference whatsoever to their current patent lawsuit costs. Shareholders will still be paying $100m a year defending themselves against patent lawsuits.

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$7 billion a year?

I know that's 'only' £3.6 billion, but you'd think they'd have come up with something a bit better than an OS that takes 15 minutes to delete a file.. unbelievable..

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Are there software patents in the UK

I have heard that there are no software patents in the UK, so even if this is a problem in the US, people in the UK are not affected.

Some clarity on this woul dbe appreciated.

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Of course they won't

If they admit to which patents they claim are infringed, then that allowes people to examine the claims and do one of several things:

a) Show that it's complete bovine manure and there's no infringment at all

b) Show that the patent is invalid

either of these of course get Open Source off the hook

c) See that there is in fact an infringment and a way to work around it

round of upgrades and problem gone

d) See that there is a problem that can't easily be worked around

in which case we have to hide behind the 'assured mutual destruction' method of defence supported by those (like IBM) who have patent portfolios with which they can hold MS to ransom.

MS will NOT list these patents in a hurry because they've seen what happened to SCO. What I confidently predict is that they'll slowly go after a few medium sized users and extract a licencing tax - with suitable NDAs to prevent open discussion. Small users aren't worth bothering with, big users might call their bluff and fight back. But medium sized users won't be able to fight and so will have to pay the protection racket money - yes this is entirely analogous to the old style protection rackets (buy our insurance or the shop might 'accidently' get burned to the ground).

Of course, as they get more and more licencees under their thumb, this will add to the appearance of 'legitimacy' of their claims and make it easier to persuade others to fall into line.

Oh yes, someone asked why users should be worried, we'll if you USE something that infringes then you can be held liable - it's not just whoever makes it. That was of course the basis of SCOs actions against it's own customers.

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We need less doubt, Lou

Lou Gosselin writes ...

3. Code around the patent by avoiding or modifying feature.

4. Get a license/permission for the patent.

Both of these require us to know which specific patents Microsoft thinks we're infringing. We can't make any progress unless they tell us, and Lou's strategy of masterful inactivity is just what Microsoft wants. The result is that Linux uptake is inhibited for users who worry about being sued - in other words, FUD wins.

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re: Peter missing something

Peter, You are missing something. Dave in Essex is not liable, not least because you can't patent software in the UK. This stuff is happening in the US however, where a) you can patent software and b) end users can be held liable.

Recently Microsoft was found guilty of infringement of an MP3 patent. MS defended the case and is coughing up the money but it was actually Dell that was originally sued. Something similar happened on a patent infringed in Sql Server. There was a possibility that all SQL Server users could be sued, but MS stepped up and settled the suit on behalf of thier users.

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Microsoft MUST defend patent rights

Like a trademark, the holder of the patent must defend their intellectual property, because if they do not, and they can be shown to have abandoned it, then the patent is effectively void.

Of course, if Microsoft know they have no case, that is another matter, but choosing not to launch into a defence at this time is effectively abandoning their claim, nyet?

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@Peter: Who's in the firing line

If you live within the jurisdiction of a valid patent, then as an end-user you are indeed liable to be sued. The patent grants a monopoly on manufacture and use of the invention.

> that's just... Well, stupid....

Amen to that.

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Anonymous Coward

Re: Microsoft must defend patent rights

Probably the main reason why MS WON'T name the patents is because of this very fact. As soon as the specific patents are known they are in the firing line and able to be shot down by proof of prior art, etc.

And, considering MS's track record in 'innovation', I'd say the chance of any of these patents standing up to scrutiny would be very small indeed.

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Anonymous Coward

Patent means open, open to public inspection

Surely the point of a patent is to openly show what the invention/process is in return for grant of exclusive right to produce or sell that invention/process.

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Anonymous Coward

Dear Mr Gates,

There's a well known saying which applies here.

EITHER PUT UP OR SHUT UP.

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Anonymous Coward

FFS!

Come on you guys - M$ are lying! How dense do you have to be to believe M$ - they always lie, they've been lying for years. They don't have ONE single patent that Linux infringes. End Of Story.

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administrative overhead my eye

Man, if it costs them too much to list their own patents - which, curiously enough, they managed nonetheless to count to very exact number - I would think it is high time that MS devote a bit of money to develop a better patent tracking system.

Seems that developing a new OS that has broken all records in file deletion speeds (in a bad way) really did take the monkey out of MS bank accounts.

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Anonymous Coward

Linux & Open Source Header eweek:Author of Linux Patent Study Says Ballmer Got It Wrong

M$ has a good reason to keep there mounth shut. Even the author of the study says :

"

But Ravicher said Ballmer misinterpreted his study's findings. "He misconstrues the point of the OSRM study, which found that Linux potentially, not definitely, infringes 283 untested patents, while not infringing a single court-validated patent."

"

please note 'court-validated', that means M$ is like to loose if a patent is tested in court (IMHO).

http://www.eweek.com/article2/0,1895,1729908,00.asp

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re: FFS

You're not quite right there. They most certainly do have those 235 patents upon which linux is most certainly infringing.

The question is wether those patents are going to stand up in court, aka, if they have prior art or are too general, the patents will be called null and void by the courts.

What patents might remain after this will likely be things that can be removed from Open Source software entirely or worked around with some effort. Again though, before we can do anything about it, Microsoft must release the list of patents.

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Linux doesnt infringe

Lou Gosselin sais that patents<>copyright. And thats right.

But linux doesnt infringe any patents! At least thats what Linus Torvalds sais and he should now.

The technology used in os development has been invented in the 60s and 70s and all possible patents are long expired.

I am certain (trusting Linus' word) linux doesnt implement any patented feautures.

By the way the idea of not allowing people to put their effort in writing a useful piece of code because of patetns (aspecially those bogus, incorrrect and hastened ones) makes me feel sick, raped even.

The software patent system as it is now is faulty and wrong!

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It's not the expense of publishing.

It's the expense of dealing with what would happen immediately after publishing.

To quote the article:

'Microsoft patents attorney Jim Markwith told OSBC it would be "impossible" for Redmond's bureaucrats to respond to the volume of responses that would result form disclosure.'

Now, despite the type ('form' instead of 'from'), I think that sentence is pretty clear.

I believe this is mostly FUD and that MS should put up or shut up. However, the article clearly states that they're concerned with the costs of handling the flood of inquiries and comments if they were to publish, and not the cost to publish itself.

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MS BS

I call BS.

They know exactly what'll happen to those patents once they're subjected to scrutiny: invalidated, sidestepped entirely, or counter-attacked by one of the other corporates who have a vested interest in this.

Then where would they be? God forbid they might actually have to compete on merit and price instead of intimidating people into doing business with them.

That they won't reveal even one and come up with such a lame excuse for it should tell you everything you need to know about how valid most of these patents will turn out to be.

What next? "The dog ate our patents?"

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J

Re: Linex Fan boys

With fanboys like Paul, it's no wonder Windows is as "good" as it is... Two "compays"? What companies, Microsoft and Linux? Duh... Linex? Is that a window cleaner? Can't even write, imagine the rest.

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Yes, software patents

Forgent just lost one its patents in court. Meanwhile, linked lists have been patented. I'd cite Knuth as prior art.

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Patents

There is at least one known MS patent: sudo.

They patented this "concept of running a program as a different user". There is no way that MS will risk presenting this to a judge!

I personally have no doubt that they could name 235 patents, all of which are invalid.

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The way to MAKE them disclose the patents

The way to make Microsoft disclose their "235" patents is for one of the Linux distros or popular Linux app developers to sue them.

A company with revenue that is dependent on Linux could easily sue Microsoft for slander/libel/defamation. Microsoft is making public claims (supported by a bunch of marketing cash) that are impacting the ability of these companies to do business. If Microsoft can't back up its claims with evidence, that's slander/libel/defamation (depending on how the false information is distributed).

Therefore, Microsoft would be forced to show their cards or shut up.

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Why MS doesn't dare name the patents - not even one

"Microsoft only has to prove that one patent has been violated and the whole open source house of cards comes crashing down."

Bollocks!

You think IBM and some of the other 800-pound gorillas don't have software patents that Microsoft infringes? Think again.

If Microsoft is silly enough to detail even *one* patent that they claim is being infringed, then the run a number of risks, including:

A declaratory judgement that the plaintiff (whoever brings the suit against the patent) is not infringing.

A judgment invalidating the patent.

A suit by other patent holders against Microsoft for patenting or attempting to patent a process for which the other patent holder already owns the patent.

And, of course, the MS fanbois will immediately claim that *I* am spreading FUD - but look at who claims "you're infringing our patents" but won't dare detail which ones.

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Anonymous Coward

Outlaw open source?

Microsoft seems hell bent on outlawing open source, eventually, when it can be bothered. So Linux developers will have been doing something illegal, patent infringement, so why don't they just give up writing open source software and do something else illegal. Like releasing a deludge of Windows viruses, with plenty of developers freed up from the open source movement; there should be a new venurability every hour or so.

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The Dead Silence of Truth and Rodney Dangerfield

There has been a lot of claims from software companies in the recent days about “patent infringement” and how open source is infringing on a number of patents held by “x” (fill in the blank with your favorite high technology company.) Recently, one company stated publicly that open source violates their patents “but their not going to take legal action.” This seems to be the equivalent of the famous line by Rodney Dangerfield in “Caddyshack” when he says “nice shirt, but it looks good on you.” This is what is commonly referred to as a “drive-by” whereby there is no response. This is the easiest form of FUD currently available in the media.

However, in the world of litigation, this is something that needs to be fully examined to show how disingenuous this marketing tactic really is. Although I am not a specialist in intellectual property law, I am a litigator in the federal arena and a practicing attorney. As an attorney, when the opposing side throws a line out like this, I find it quite amusing. It is something that is said when you do not have the stomach or the legal case to go forward. I will explain.

First, if you are going to claim that somebody is violating your patent or patents, you should go to court and litigate. This is money and time that is allegedly being stolen by another company. I understand that benefit-cost analysis behind not litigating however for companies who go to court and litigate at the drop of the hat, something this significant and important should be a “no brainer” for litigation.

Second, all patents that have been allegedly infringed upon have already indeed been filed with the US Patent and Trademark Office (this is part of the process to exclude others from obtaining gains from your work.) This part of the paperwork is common and public record which can be looked up and inspected. So, if patents are being violated and crimes are being committed by another company, then there is absolutely no reason in not giving out the information of which patents are allegedly being violated. Since the patents are public record, then explain which public record documents are relevant and you believe will prove your point. Now comes the deafening silence by the disingenuous.

I suspect the reason that they do not want to litigate is that one little word that will stop them dead in their tracks: discovery. This is the process by which the other side is allowed to defend themselves in a court of law. When a high technology company, or any other company decides that their patents have been infringed upon, then if they do decide to go to court, they will have to open up their code and show the court (even if it is under sealed order) that their patents are infringed upon. This is the rule of law and they know it. This means that they will have to “show their cards” as they say. This is what SCO had to do and this is why they have been beaten into the dirt.

So the next time that you see these “drive by” statements from companies that have no intention of litigating these matters, please give their statements the scrutiny that they deserve and remember that these statements are very much like a comedian speaking in a comedy movie – just for laughs.

Joel H. Wolff

Attorney at Law

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Not So Agile, eh?

I thought MS software made everyone AGILE and easy to communicate. This statement pretty much invalidates their entire ad campaign.

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Anonymous Coward

How about Just One?

Maybe Microsoft can't find the time to list all 235 patents. But how about posting one? Ten would be better, but post some small number of patents that demonstrate unequivocally that the patent issue is real.

MS's friends over at SCO said millions of lines of code were infringing and I think they talked about patents, but hey they talked about so many things that turned out to be false it is hard to keep track of all the lies.

Anyway if MS would show one or two, companies would know MS is for real and people might run to the table. But I get the feeling the report of patents infringing, is about as plausible and real as the report Iraq attempted to get yellow cake from Niger.

Just One MS, just one.

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this story + Antigua + Court ruling MS vs. AT&T

Combine this story plus Antigua story plus story that US courts have no concern about MS violating Software patents overseas and you see even if MS had some valid patents here (which I doubt) it would not affect anyone overseas. and if you set up distro server in Antigua evrything just gets messier to track.

*Last month, Microsoft was on the winning side of a patent squabble when the Supreme Court ruled 7-1 that the company was not responsible to compensate AT&T for patent infringing software sent overseas in Windows gold master disks.

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Stig O'Tracy

Presenter: Another man who had his head nailed to the floor was Stig O' Tracy.

Interviewer: I've been told Dinsdale Piranha nailed your head to the floor.

Stig: No. Never. He was a smashing bloke. He used to buy his mother flowers and that. He was like a brother to me.

Interviewer: But the police have film of Dinsdale actually nailing your head to the floor.

Stig: (pause) Oh yeah, he did that.

Interviewer: Why?

Stig: Well he had to, didn't he? I mean there was nothing else he could do, be fair. I had transgressed the unwritten law.

Interviewer: What had you done?

Stig: Er... well he didn't tell me that, but he gave me his word that it was the case, and that's good enough for me with old Dinsy. I mean, he didn't *want* to nail my head to the floor. I had to insist. He wanted to let me off. He'd do anything for you, Dinsdale would.

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Anonymous Coward

RE: Naming the patents could cost them

Right. As if they're already not making enough from their flaky, draconian, overpriced software to cover the costs.

Go ahead, Microsoft. Keep on stealing people's ideas, patenting it and then suing people for using "your" ideas. One day, you will be punished, either by the powers that be, or by the common people you screwed over. Remember, what goes around, comes around.

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