Setback for MS in EU Antitrust Appeal

Thursday, August 12 2004 @ 08:38 AM EDT

Contributed by: PJ

Things are not going swimmingly for Microsoft in its appeal of the EU antitrust decision against it. tglx sends us a report from Financial Times Germany, and his translation indicates things are not going so well for the monopoly there in their EU antitrust appeal. There has been a ruling that Microsoft must provide proof of its claim that complying with the EU decision against it will damage its IP rights:

"Microsoft Experiences a Setback in the EU Lawsuit

".... The judge said Microsoft has not proved yet that the decision of the European Agency is violating Microsofts copyrights. That's the main argument of Microsoft against the first court ruling in March. Brussels decided there that the software giant had violated the European Competition Regulations by taking advantage of its dominant position in the OS market. . . .

"MS must now present a list of all patents, copyrights and trade secrects which are affected by the first court decision by the end of this week. MS has already delivered an extensive documentation of its claims, but obviously it was insufficient to convince the judge."

The report, he says, goes on to quote a Microsoft opponent as saying that the judge has uncovered a weak point in Microsoft's position and that at a minimum, it shows that the judge isn't going to take anything just on Microsoft's say-so. Someone reportedly involved in the case on the commission side is quoted as saying, "I'm convinced that MS has a problem proving the copyright violations and it will be hard for them to sell their position to the judge."

PCPro just put up an equivalent story in English. Speaking of Microsoft and its patents. . .

Here's something from a patent attorney, what he thinks the strategy is:

"But Tom Franklin, a patent attorney with the firm of Townsend & Townsend in Denver, Colorado, said . . . Microsoft may be trying to replicate the success that IBM, Xerox and others have had in producing thick portfolios of patents they then license to their customers. 'A lot of companies that were illegal monopolies, like IBM and Xerox, they learn to like being monopolies, and they say, "How can we do this legally?"' Franklin added.

"IBM typically receives more patents per year than any other single applicant, but Microsoft has been among the top patent-getters in recent years. Speculation that Microsoft is pursuing such a strategy has been ramped up by the company's hiring of an IP expert from Big Blue. 'The idea is to file a tremendous amount of patents and then go about trying to get royalties,' Franklin said. The threat of patent litigation also can become a factor when a company is mulling whether to renew a contract with Microsoft or jump ship to a competitor."

No antitrust issues there. If you quit using their product, they'll sue you for patent infringement? Talk about free as in freedom. Or even just free as in free market. No wonder the world is beating a path to Linux's door. Just the fact that a patent attorney could say that in public as a plausible guess as to MS's patent strategy tells you that the patent system probably could use a tweak, preferably before they are in full battle regalia and armed to the teeth.