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EVERY schoolyard has programa microsoft picture it photo premium 10 a bully who uses his size to intimidate the other kids, or programa microsoft picture it photo premium 10 a rich brat who threatens to take his ball home if he doesn’t get his way. This month, Microsoft played both roles by claiming in a programa microsoft picture it photo premium 10 Fortune magazine article that open source programs violated 235 of its patents.

Microsoft claimed there were 42 such violations in the programa microsoft picture it photo premium 10 free Linux operating system, 65 in the way windows and menus look, 45 in OpenOffice, 15 in various e-mail programs and programa microsoft picture it photo premium 10 68 more in other open source applications.

To address these alleged breaches, Microsoft wants to programa microsoft picture it photo premium 10 start collecting royalties from open source developers and users, a programa microsoft picture it photo premium 10 move that would jack up the cost of free software.

“We live in a world where we honor… intellectual property,” Fortune quotes Microsoft chief executive Steve Ballmer as saying. Users of free and programa microsoft picture it photo premium 10 open source software are going to have to “play by the same rules as the rest of the business,” he says. “What’s fair is fair.”

But how fair are software patents?

Originally, states granted patents to encourage innovation.

Under a programa microsoft picture it photo premium 10 patent system, inventors could enjoy the fruits of their discoveries exclusively for programa microsoft picture it photo premium 10 a limited number of years in exchange for sharing details of their inventions with the programa microsoft picture it photo premium 10 rest of the world. This system, so the argument goes, encouraged inventors by giving them a programa microsoft picture it photo premium 10 time-limited monopoly but also guaranteed that others could eventually be able to programa microsoft picture it photo premium 10 build on and improve those inventions.

For example, a programa microsoft picture it photo premium 10 patent on a new drug would give its holder exclusive rights to programa microsoft picture it photo premium 10 make and sell it for 20 years, in exchange for disclosing details of its composition. During this programa microsoft picture it photo premium 10 protected period, anyone else who wanted to manufacture the same drug would have programa microsoft picture it photo premium 10 to buy a license from the patent holder.

After the programa microsoft picture it photo premium 10 period expired, however, anyone would be free to manufacture the programa microsoft picture it photo premium 10 same drug, using the information provided in the patent filing.

This system works reasonably well for programa microsoft picture it photo premium 10 the pharmaceutical industry, but it actually hurts innovation when it is programa microsoft picture it photo premium 10 applied to software.

Creating a new drug requires huge amounts of capital for R&D, but a programa microsoft picture it photo premium 10 single, gifted programmer, or many such individuals working cooperatively over the programa microsoft picture it photo premium 10 Internet can develop superior software. We have seen this happen in operating systems (Linux versus Windows) and applications (Firefox versus Internet Explorer), and this trend will continue—if it is not stifled by misguided patent policies.

Software patents favor only large corporations such as Microsoft, who programa microsoft picture it photo premium 10 can afford to apply for them and to maintain a battery of lawyers to programa microsoft picture it photo premium 10 enforce them. Small developers cannot, and would be forced to pay license fees to programa microsoft picture it photo premium 10 develop the most basic of programs.

Microsoft does not provide specifics about the programa microsoft picture it photo premium 10 patents that it claims have been violated, but it says 65 of these deal with the programa microsoft picture it photo premium 10 way windows and menus look on the computer screen. But why should Microsoft or programa microsoft picture it photo premium 10 any one company have a legal, exclusive right to the way windows and programa microsoft picture it photo premium 10 menus look? All modern operating systems today that programa microsoft picture it photo premium 10 trace their origins back to the Xerox Palo Alto Research Center in the programa microsoft picture it photo premium 10 1970s use a windows (with a small “w”) metaphor and programa microsoft picture it photo premium 10 menu systems that certainly were not invented by Microsoft. In fact, Apple unsuccessfully sued Microsoft in 1988 for programa microsoft picture it photo premium 10 copying the look and feel of the Macintosh operating system. Must we really pay royalties for programa microsoft picture it photo premium 10 using a window with scroll bars?

Yet today, patents are programa microsoft picture it photo premium 10 being granted for commonplace notions such as selling goods online; electronic shopping carts; video distribution over the programa microsoft picture it photo premium 10 Web; credit-card payments on the Internet; and video streaming. None of these qualify as major innovations requiring state protection, so why give any one party monopoly rights over them?

Software has programa microsoft picture it photo premium 10 traditionally been protected by copyrights, which prevent others from copying a programa microsoft picture it photo premium 10 program’s underlying code. But software patents are programa microsoft picture it photo premium 10 much more restrictive and prevent all similar work from taking place, even if it programa microsoft picture it photo premium 10 is developed independently. Common sense tells us this does not encourage but inhibits innovation.

Software patents work against the programa microsoft picture it photo premium 10 open source community and countries would do well to resist any pressure from programa microsoft picture it photo premium 10 the United States and large software companies to introduce them through legislation. In the programa microsoft picture it photo premium 10 Philippines, the Intellectual Property Code specifically excludes computer programs from programa microsoft picture it photo premium 10 patent protection. All efforts to amend this must be blocked.

Few people expect Microsoft to programa microsoft picture it photo premium 10 sue open source developers, much less its own customers, over software patents. The threat of a programa microsoft picture it photo premium 10 suit, however, may be enough to convince some customers to use “authorized” versions of Linux that programa microsoft picture it photo premium 10 are already covered by cross-licensing deals, such as the one Novell signed with Microsoft. As one analyst observed, this programa microsoft picture it photo premium 10 would allow Microsoft to gain revenue from the burgeoning open source market in which it programa microsoft picture it photo premium 10 cannot play. Now why does that evoke images of a schoolyard bully shaking down smaller kids for programa microsoft picture it photo premium 10 lunch money? Because both are patently wrong, that’s why.