Sorting through rubble after Microsoft's Linux patent bombshell

* Microsoft patent dispute is more complex than it appears

As the open source community digs out from the patent assertion bombshell dropped by Microsoft last week, the situation appears more complex than simple bullying and heavy-handed legal threats from Microsoft against Linux and open source. (Although there was no shortage of that from Microsoft last week).

The controversy came from quotes by Microsoft executives in Fortune magazine, claiming that the Linux operating system violates over 200 patents held by Microsoft.

"This is not a case of some accidental, unknowing infringement," says Microsoft's general counsel and intellectual property and licensing vice president Horacio Gutierrez. "There is an overwhelming number of patents being infringed."

Like SCO — which made similar allegations against Linux more than four years ago — Microsoft is not yet revealing what specific Microsoft software patents Linux technology violates. Unlike SCO, Microsoft has billions of dollars, thousands of lawyers. Microsoft however is giving some outlines as to what it thinks Linux violates. This breaks down as follows: the Linux kernel violates 42 patents; the user interface violates 65; Open Office violates 45 patents; open source e-mail applications violate 15; various open source software, another 68 patents.

With these incendiary assertions out on the table, Microsoft, oddly enough, spent much of last week trying to assuage critics and show that, while it claims to have the silver bullets to kill Linux and open source, it won't pull the trigger.

"Our strategy from everyone in the company … has always been to license and not litigate as it relates to our intellectual property," said Bill Hilf, general manager of platform strategy and director of Microsoft's work with open source projects, in an interview with IDG News Service.

Observers also pointed out that Microsoft is backing legislation in Washington, D.C., that would make it harder for patent holders to sue and collect damages from those who infringe on their intellectual property. However, at the same time, Microsoft is growing partnerships similar to the one made with Novell last year — where the two firms agreed not to sue each other's customers over potential, future patent infringement claims. Dell and Samsung ran under this umbrella.

"There's no other hidden agenda," Microsoft's Hilf said. "I'm trying to be as clear as I can to people that this isn't a threat. We're not going out and attacking people. We're trying to solve an IP issue."

Instead of slaughtering open source with patent lawsuits, injunctions and damage claims, it appears the goal is to milk, or bleed, open source software companies through licensing, and indemnification deals. You can't say there's anything secret or hidden about that strategy.

Copyright © 2007 IDG Communications, Inc.

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