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Intellectual Property Conflicts Between Microsoft and Free and Open Software (FOSS)

Issue

Microsoft is claiming the publicly that free and open-source software (FOSS) violates some of Microsoft patents. In an article by Fortune, published by CNN, Microsoft announced that “Linux” violates at least 235 of its patents. It forced the user of FOSS to pay Microsoft royalty fees upon behavior as stated above. Among the patents infringed upon are 45 that apply to OpenOffice and 83 that apply to FOSS applications that are not part of the Linux kernel or its commonly associated graphical interface. However, Microsoft have not take any legal action yet and it keeps the patent details in secret.

Rule

Intellectual property (IP) refers to an outcome, invention or creations of innovation and creativity. As claimed by Microsoft, the term patent is to exclude others from making, using or selling the invention or using process. Anyone who uses, manufactures, produces or sells the invention or process embodying the invention with or without commercial benefit is considered as IP infringement.

Microsoft claims that FOSS has used its process (refer to the program coding) to produce the same functionality as Microsoft Window provide. This included the graphical user interface such as mouse click, double click, menu style and so on. Whereas the kernel programming is refers to the coding on how the processor of computer)being interfacing by other hardware such as RAM, hard disk, DVD ROM and so on.

However, there is exception for the patentable invention which stated that discoveries, scientific theories and mathematic methods can not be patented.

Analyze

Software can be copyrighted to prevent ones from copying it. Microsoft Windows is copyrighted. For those who is using or copying the software unauthorizedly can be considered as IP infringement behavior. But now, the condition is different, FOSS do not copy the Microsoft’s software. So it can not be sued upon infringement of copyrighted product. Instead of it, Microsoft claims that FOSS has using or copying their coding in producing their software. Can coding being patented?

If we review the rule, one can patent the new, useful inventions and its process and apparatus to produce it. Microsoft Windows is definitely a new product which use graphical user interface in computer (precede by DOS operating system, no graphical user interface at that OS) and of course it is useful in those computer works. Therefore, it can be patented and according