Microsoft CEO Steve Ballmer apparently so liked the hole he was digging with his vague dyspeptic grumblings about Linux infringement on Microsoft patents that he called on the Microsoft legal department to dig the hole deeper as Fortune reported over the weekend. The new chief ditch diggers are Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez who are claiming that 235 Microsoft patents are infringed by open source products:
In an interview with Fortune, Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. OpenOffice.org is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.
Having fallen into this pit, the next step is inevitably to reveal which 235 patents are being infringed although Microsoft seems to be a bit coy about that (from the Fortune article):
Gutierrez refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.
The opens source crowd is already rubbing their hands at the prospect. Due to the nature of the patent system which relies on challenge and litigation for clarification and the vagueness of many software patents, I’m sure Microsoft can make a more credible case than the laughable performance by SCO in their Linux copyright lawsuit against IBM, but they run a substantial risk as well.
The real question though is where Microsoft thinks they are going with this. Steve Ballmer’s Big Ditch may be a useful marketing bullet, but I find it hard to believe that Microsoft is going to sue any major customers for using open source programs, because they are almost certainly major Microsoft customers as well. Microsoft could always find some little businesses to pick on, but the publicity from that would be really ugly. About the only thing left is to sue open source software distributors, but now we’re talking a variety of deep pocket companies like IBM, Dell, Sun Microsystems, Hewlett-Packard, Motorola and Oracle who are as equally adept as Microsoft in prosecuting and defending patent lawsuits:
So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN [Open Invention Network of major companies backing open source] might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It’s a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon – an unending series of suits and countersuits that would hobble the industry and its customers.
Now that would certainly be exciting! I’m chalking this all up to Microsoft marketing FUD unless the Microsoft executive suite has collectively taken leave of their senses.