Does New Microsoft Patent Infringe On Unix Program Sudo?

A patent granted to Microsoft (NSDQ: MSFT) has stirred up worry that world's largest software company wants to claim Unix's "sudo" as its own.

Sudo is a Unix program used to raise a user's privilege level to accomplish tasks that require administrative privileges. It allows a user to temporarily execute commands as the root user.

Microsoft's "Rights elevator" patent describes a way to "enable a user to elevate his or her rights," which of course is what "sudo" does.

This apparent similarity has led some in the open source community, cognizant of Microsoft's past hostility toward open source software, to ask whether the company plans to demand a patent licensing fee from open source vendors.

Microsoft may wish it could do so. If so, it won't say: The company declined to comment.

In any event, the "Rights elevator" patent isn't likely to provide Microsoft with the opportunity to seek such fees.

Michael B. Einschlag, a partner at Rosenlaw & Einschlag, which specializes in open source and intellectual property law, said Microsoft's "Right elevator" patent is narrowly framed to cover the graphic user interface used to present computer privilege elevation.

"It's a description of how to present the information to the user," he said. "It doesn't cover the concept of how the user is trying to accomplish some task."

After reviewing documents covering the patent's history, Einschlag pointed to three specific identifiers that the patent's examiner concluded were necessary for Microsoft's invention to qualify as a patentable innovation: frequency of use; association with the current user; and indication of sufficient but not unlimited rights.

"Fundamentally, it's something to make it easy for users to understand how to upgrade their rights," he said.

In short, suspicions about this patent are overblown. That's a problem Einschlag believes can be addressed through stronger patent law resources. "The community needs better access to people who can explain things to them," he said.

Einschlag observed that the patent examiner appeared to have been diligent in seeking to narrow the patent, which was rejected, amended, and re-submitted several times before finally being accepted.

This clashes with the view held by many patent system skeptics that patent examiners rubber-stamp even the most obvious patent claims.

The misplaced worry about Microsoft's patent may be fueled in part by broad dissatisfaction with the patent system on the part of technology companies and open source advocates. Patent reform has been a goal of companies like Microsoft and Google for years, but doing so in a way that satisfies all stakeholders hasn't proven to be easy.

For large commercial companies, there's the belief that patent holding companies, often referred to as patent trolls, operate a protection racket, demanding licensing fees as protection from expensive patent lawsuits.

Among companies that rely on open source technology, many believe that patents hinder innovation.

For startups and independent inventors, however, a patent is often the only protection strong enough to prevent a genuinely innovative product or service from being stolen or copied.

It's a complex issue with many interests and it's one the Supreme Court will soon in part address.

The Supreme Court recently heard oral arguments in the Bilski case, which limited patents on business methods. (Amazon (NSDQ: AMZN)'s one-click patent is an example of a well-known business method patent.)

Einschlag said Microsoft's "Rights elevator" patent isn't likely to be affected by the Supreme Court's ruling, which he expects will invalidate Bilski on the narrowest of grounds.

If that happens, most of the issues prompting calls for patent reform will remain to be resolved another day.