Friday, November 13, 2009

What if Microsoft actually did patent Sudo? Is open source safe from patent lawsuits? Should it be?

The big controversy in the Unix/open source community this week arose from a post on Groklaw opining that Microsoft's "rights elevator" patent was a patent on the well-known and much beloved Unix "Sudo" command, which gives a user temporary "godlike" powers.

The horror in that tight-knit group, who make it their business to distrust anything that somes out of Redmond, was palpable. By the end of the week, some of the concern had faded, with many experts stating that there was nothing to fear -- that Sudo was still safe.

Notably, this this not the first time Microsoft has been accused of trying to monopolize something the open source community believes belongs to all -- See the post "Did Microsoft Just Patent Sudo? -- Holy crap I think they did" from 2007.

However, the controversy itself raises three important questions. (1) What would be the impact on the software industry in general and on the open source software industry in particular if Microsoft was able to successfully patent one of the core functions of Unix? (2) Could the open source community "work around" Microsoft in a way that would prevent a Microsoft lawsuit from gaining any traction? (3) What kind of monetary recovery could Microsoft expect if the patent held up and it could prove infringement?

And what effect might a SCOTUS Bilski decision that weakens software patents have on all this?

Frankly, I think if Microsoft is trying to strangle Linux by these tactics, they need better tactics. The open source community has proven that it can adapt very quickly and easily to virtually any attack. If Microsoft were to truly be able to patent something that was core to Unix, I think that there would be a lot of sturm und drang at the beginning, but that the industry would adapt in fairly short order -- and Microsoft would have just bought itself a bunch of new enemies.

If Microsoft were to start bringing lawsuits against open source vendors based on a patent like this, I think it would have pretty tough sledding. The open source industry -- led by companies like Red Hat and organizations like OIN -- has proven itself very adept at finding devastating prior art and making sure it is published. I believe that Microsoft would regret the day it tried to enforce such a patent, as there would be hundreds devoted to invalidating it.

In terms of any financial recovery -- assuming that the patent survived an invalidity attack and was found infringed -- Microsoft's ability to recover damages for any patent attacking open source software would be severely hampered by the very adaptability of open source. If there was an open source alternative to something like Sudo, even if it was not quite as good, Microsoft's recovery would be very limited since, if an infringer could get around the patent easily by switching to another open source alternative, the "reasonable royalty" for the Microsoft patent would be low.

And if the Bilski decision substantially weakens software patents, something like this "Sudo patent" might be thrown right out the window anyway.

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