Microsoft’s Ironic Poker Game: But are they bluffing this time?

Back in February, Network World ran a story that Linus Torvalds, inventor of the Linux operating system and guru of the Linux kernel, believes that Microsoft is bluffing in its threat to sue for patent infringement. NW quotes Torvals as saying, “They have been sued for patents by other people, but I don’t think they’ve — not that I’ve gone through any huge amount of law cases — but I don’t think they’ve generally used patents as a weapon.”

Linus hasn’t investigated the link between Microsoft and Patent in court. We all know that Microsoft gets sued for various forms of infringement or questionable business practices about as often as a would-be-model/ survivor/ singer/ dancer/ geek/ bachelor/ b-list-celebrity gets kicked off the island. But do they ever sue? They certainly have a nasty reputation – one perhaps even worse than those of Sony, the RIAA, and SOCAN. But is it deserved?

Although Linus has, generally, far more wealth, celebrity, and tech-savviness than I do, I have access to Lexis and Quicklaw (with international content). It’s one of the perks of being a trainer for LexisNexis Canada. So I spent an evening on Quicklaw and on Lexis, looking for cases dealing with patent infringement where Microsoft was the plaintiff.

Nada. (A colleague tells me that he actually did uncover one case from about twenty years ago through another resource, but it never made it to court.)

Well, nada until last year, when Microsoft, according to a procedural case pursuant to the infringement claim, sued Computer Imaging Systems for patent infringement: Microsoft Corporation v. Computer Imaging Services, Inc.; Steve Plourd; and Mike Riley, 2007 U.S. Dist. LEXIS 16585. This decision was in respect of overturning a default and allowing an extension for the defendants. U.S. District Judge Duffey allowed it. That’s completely irrelevant. You see, the case ended up being settled, so without any decision on the patent infringement suit itself, the reference to the suit within this decision is the only indication that the suit even existed:

William S. Duffey, Jr., United States District Judge: “On July 14, 2006, Plaintiff Microsoft Corporation (“Plaintiff”) filed this patent infringement suit against Defendants, alleging that Defendants distributed counterfeit and infringing Microsoft software.”

That came from Quicklaw’s U.S. content (which has access to all cases reported on Lexis). Just to see what finally happened, I went into Lexis, which could potentially give me more information on the docket. Docket #1:06-cv-1666-WSD, United States District Court for the Northern District of Georgia, Atlanta Division. Here’s what I found using CourtLink on Lexis:

MS and CIS settled in September of 2007. That’s not the interesting bit. What’s interesting is that Lexis lets me see those Stipulation documents, so I know it settled. It also lets me see the original Complaint document. From the original complaint:

Filed July 14, 2006: “This is an action by Microsoft Corporation (“Microsoft”) to recover damages arising from infringement of Microsoft’s copyrights and trademarks in its software programs by Computer Imaging Services, Inc., a Georgia corporation, [...] and to enjoin the Defendants’ future infringement. [...] Defendants have infringed Microsoft’s copyrights and trademarks [...]“

The complaint is a 62-page pdf. Nowhere in it is the word “patent” used in any context except to refer to the Patent and Trademark Office, wherein Microsoft’s trademarks are registered. In other words, even here we have a false alarm. It wasn’t a patent suit, but a copyright and trademark suit.

So here is the question: Is Microsoft trading on their maligned reputation now? Are they taking advantage of the fact that people think they are more evil than they are in order to scare the OSS/GPL community? Are they using their evil reputation as a bargaining chip, when ironically, Microsoft really isn’t so bad?

It will be interesting to watch it all play out.