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● 04.16.09

●● Microsoft Tells Antitrust Regulators to Sod Off For Another Couple of Weeks

Posted in Antitrust, Europe, GNU/Linux, Microsoft, Patents, Petitions at 6:40 pm by Dr. Roy Schestowitz

Summary: Microsoft delays EU response even further while ECIS lays charges against Microsoft

Yesterday we wrote about ECIS's strike against Microsoft and today it turns out that Microsoft keeps procrastinating while its existing products remain anti-competitive by design.

=> ECIS's strike against Microsoft | ↺ Microsoft keeps procrastinating | anti-competitive by design

EU antitrust regulators have granted Microsoft yet another extension to respond to charges that the software giant abused its dominant market position by bundling Internet Explorer with Windows.A European Commission spokeswoman confirmed to The Register this morning that Microsoft has been given a one-week extension. The company now has until 28 April to respond.

Someone has sent us a new document about Microsoft’s crimes. Yes, found within the PDF in a recent complaint is one link to this other EU document [PDF]. It is reminiscent of the Comes petition, but it’s more recent and a lot shorter. It is titled “Microsoft: A History of Anticompetitive Behavior and Consumer Harm” and it comes from ECIS. It happens to speak very concisely about Microsoft’s version of “reasonable and non-discriminatory” (really meaning “predatory and anti-competitive”).

=> ↺ this other EU document

To use an excerpt that contains references to GNU/Linux in particular, here is a new message from HPT in USENET (quoted text is unifont):

Table of contents of this document is a further indictment against the monopoly regarding its anti-competitive practises against competition.MicrosoftA History of Anticompetitive Behavior and Consumer HarmMarch 31, 2009

TABLE OF CONTENTS

I. INTRODUCTION .............................................1

II. MICROSOFT’S HISTORY OF ANTICOMPETITIVE CONDUCT ..........3

A. Microsoft’s Campaign To Destroy DR-DOS ...................3

B. Microsoft’s Anticompetitive Per Processor License Fees ...5

C. Microsoft’s Retaliation And Price Discrimination Against IBM

.............................................................6

D. Microsoft’s Organized Collective Boycott Against Intel ...7

E. Microsoft’s Elimination Of Word Perfect ..................7

F. Microsoft’s Deceptive WISE Software Program ..............9

G. Microsoft’s Elimination Of Netscape .....................10

H. Microsoft’s Attempts To Extinguish Java .................14

I. Microsoft’s Elimination Of Rival Media Players ..........16

J. Microsoft’s Campaign Against Rival Server Operating Systems

............................................................18

III. MICROSOFT CONTINUES TO ENGAGE IN ANTICOMPETITIVE CONDUCT

............................................................19

A. Microsoft’s Failure To Comply With The Final Judgment ...20

B. Microsoft’s Campaign of Patent FUD against Linux and Open

Source Software.............................................23

C. Microsoft’s Ongoing Misconduct Has Sparked Further European

Commission Investigations ..................................23

IV. MICROSOFT’S FALSE PROMISES OF INTEROPERABILITY .........24

V. MICROSOFT’S MONOPOLIES HAVE HARMED CONSUMERS ............25

A. Microsoft’s Operating System Monopoly Has Harmed Consumers

............................................................25

B. Microsoft’s Office Monopoly Has Harmed Consumers ........26

C. Microsoft’s Web Browser Monopoly Has Harmed Consumers ...28

VI. CONCLUSION .............................................31

Section III.B discusses FUD against Linux:

B. Microsoft’s Campaign of Patent FUD against Linux and Open

Source Software

    “This is not a case of some accidental, unknowing

infringement. There is an overwhelming number of patents being

infringed.”

    — Microsoft General Counsel and Intellectual Property and

Licensing Vice President Horacio Gutierrez [128]

Here is an indicting observation about the anti-competitive practises through unsubstantiated patent violations in Linux:

The open source Linux operating system is the principal rival to

Microsoft Windows. Linux has been taken up by both corporate

customers and, increasingly, by private individuals for home use

(e.g., with netbooks). In a recent interview with CNET, Steve

Ballmer identified Linux as one of the top two competitive

threats to Microsoft in the enterprise segment. [129]

Consistent with its behavior in response to other competitive

threats, Microsoft has used unfair and anti-competitive tactics

to try and slow the uptake of Linux. In particular, Microsoft

has made and continues to make broad, unsubstantiated claims that

software developers distributing Linux or other open source

software, as well as their customers, are infringing

Microsoft’s patents. [130] However, although Microsoft has

claimed that as many as 235 patents may have been infringed

[131], it has consistently failed to identify which patents are

at issue.

It warns of possible future legal action by Microsoft, as a part of its FUD campaign against Linux and Open Source to kill Linux, requirement for additional licensing for “immunity”.  According to this next paragraph, licensing fees have a certain ring of action for protection similar to action by organised crime:

Microsoft’s tactic is to spread fear, uncertainty and doubt

(“FUD”) as to whether developers and users of open source

software may be the target of future patent infringement

suits, and thereby chill consumer enthusiasm and demand for Linux

and open source solutions.

Indeed, Microsoft’s unwarranted threats have brought such

pressure to bear on Linux users that some have felt compelled to

enter into royalty-bearing patent licenses with Microsoft. [132]

Microsoft’s campaign of FUD effectively works to impose a “tax”

on the use of the most viable alternative software to Windows:

faced with an intimidating and powerful potential litigant known

for its hardball tactics, Linux users are driven to pay the

licensing fee despite the speculative nature of the IP claims.

Microsoft’s bullying tactics therefore raise the overall cost

and slow down market penetration by innovative technologies

intended to compete with Microsoft’s monopoly products.

Interesting is the comment about the US Law in regard to software patentability.

Moreover, there is a strong likelihood that Microsoft’s patent

FUD campaign may be unfounded in law. Recent U.S. jurisprudence

clarifies that the scope for patenting business methods, which

lie at the heart of many software patents, is much narrower than

was previously thought to be the case. [133] In addition, one of

the thresholds for patentability – that an invention is not

obvious to a person skilled in the art – has recently become

harder to meet. [134] As such, many of the patents held by

Microsoft are likely to be of questionable validity today.

According to this next paragraph, patents are a methodology to deter competition.

Furthermore, given the myriad of software patents in existence,

consumers may often be unable to determine with certainty whether

their use or distribution of certain software products actually

infringes another company’s IP rights. Therefore, contrary to the

broad and categorical statements of Mr. Gutierrez as to the

intentional nature of any alleged patent infringements, it is

widely recognized in the industry that, regardless of whether

proprietary or open source software is used, there is a high

likelihood that patent infringements will have been committed

inadvertently. Microsoft has sought to exploit the current

absence of clarity in patent law in order to deter consumers from

taking up offerings competing with Microsoft’s own products.

Below mentions Microsoft suing TomTom regarding Microsoft’s questionable patents.

In an apparent escalation of its patent FUD strategy, Microsoft

sued the navigational system vendor, TomTom, for patent

infringement at the end of February 2009. Three patent claims

related to Linux are included in the lawsuit. [135] At least two

of them are related to highly questionable patents on long file

name support in Windows, which have been partially invalidated by

an EC patent court on the grounds that Microsoft’s patent claims

were “not based on inventive activity”. [136] While Microsoft has

publicly claimed that its action is not directed against Linux or

open source, and the case was settled in March 2009 pursuant to a

mostly confidential agreement, this represents an aggressive

development of Microsoft’s use of spurious or highly questionable

patent claims to intimidate and eliminate competition from Linux

in order to maintain or strengthen its dominant position in the

OS market.

The full document is a compelling, fascinating read. █

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