Microsoft vs. Open Source: What's 235 Patents Among Friends?: Page 2

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Disabling the Kernel

Microsoft, though it has listed the number of alleged violations, remains vague about their exact nature. At this point this is all a game of poker in which no cards have been shown.

“When Microsoft gets explicit about what they feel the infringements are, I believe you would find the Linux community fairly responsive to address the things that are legitimate infringements,” Gillen says. Adds Weiss: “If it’s just lines of code, obviously the Linux community thinks they can just swipe out the offending code and put other code in there.”

However, Weiss says, Microsoft is making it known that in its opinion these are not pure lines of infringement – these are design patent infringements.

“If the Linux community wants to redress these infringements, they’ll probably have to take out huge blocks from the kernel, and remake it,” he says. “And as far as Microsoft is concerned, if they had to do that, it would bring Linux down to its knees and it would never recover.”

The Big Question

The defining question in Microsoft’s patent claims is: what will Redmond actually do about these alleged violations?

The company, in an email response to internetnews about the matter, says its goal is not to litigate but to license its intellectual property to Linux users. The company expects to collect royalties from end users, or alternately, ink cross-licensing deals in which companies would allow Microsoft to access their patents. (In 2003, Microsoft launched a licensing unit, and has created cross-licensing pacts with the likes of SAP, Toshiba and Sun.)

But that strategy appears to be limited. Only a percentage of Fortune 1000 companies are tech firms that Microsoft could sign cross-licensing deals with. The other corporations, across retail, finance and other sectors, would presumably be asked to pay royalties. But without some threat of litigation, however hypothetical, why would a large number of companies agree to pay Microsoft licensing fees for using Linux and open source?

And for Microsoft to launch litigation based on these supposed violations has gaping pitfalls. One obvious flaw: large end users of Linux are often also large end users of Windows.

“Let’s face it,” Gillen says. “If you take any customer who uses a lot of Linux in their backend operations, I’ll bet they’re a big Microsoft shop in the front end. So Microsoft has to be careful that they don’t go out an initiate a lot of litigation against their own customers.”

“You drive the customers away with that kind of behavior.”

These factors make actual Microsoft litigation appear unlikely. Notes Gillen: “Who are they going to sue? Even if they sued, say, Red Hat, and they take one hundred percent of Red Hat’s revenue, when you talk about the kind of costs that Microsoft would incur for this kind of litigation…” there would be no real financial gain.

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