Microsoft may lodge patent lawsuit test case: Linux specialist

Stan Beer
Wednesday, 22 November 2006 08:23

Your IT - Home IT

After a week of saber rattling to seed the marketplace with FUD about the dangers of moving away from Microsoft to Linux, look for Microsoft to lodge a lawsuit against a medium sized user that's large enough to be noticed but too small to sustain a defence in court. That's the prediction of a Linux specialist who has been watching Microsoft's actions of the past week.

According to Steven D'Aprano, operations manager of longstanding open source services firm Cybersource, Microsoft's new game of attempting to strike fear into the heart of Linux users by invoking the spectre of patent infringements may soon take an ominous new twist. Mr D'Aprano believes that Microsoft may well use similar tactics employed by its proxy the BSA six years ago when it raided the offices of guitar string maker Ernie Ball with armed marshalls and found a few machines with non-compliant software.

That episode caused Ernie Ball, with 400 employees, to cough up US$100,000 rather than face the hassle of an expensive legal battle and resulted in Ernie Ball moving all of its IT systems away from Microsoft to Linux. This time, however, D'Aprano believes Microsoft may be getting ready to challenge a medium sized Linux user with a patent infringement suit.

"Microsoft wouldn't challenge a Linux user with the resources to defend itself like IBM. It would pick a medium sized company like Ernie Ball that is big enough to be noticed but not big enough to defend itself," says D'Aprano.

According to D'Aprano, it is unlikely that Microsoft has any software patents that are infringed by the Linux kernel but the possibility cannot be simply dismissed.

"As software developers would know, it's very hard to develop anything at all without using code that is similar in some ways to other code that already exists. This is why I'm against software patents - they stifle innovation, which is the exact opposite of what patents are meant to do," says D'Aprano. "Microsoft owns a lot of software patents and it's hard to say straight out that one of them isn't infringed by some part of the Linux kernel. If that did happen to be the case, the Linux community would band together and simply re-write that part of the kernel."

D'Aprano believes that the FUD created by Microsoft has been siezed upon by Novell to create a commercial advantage for the company. "At the end of the day, Novell has an obligation to do the things that will maximize profits for its shareholders," he says. "Novell probably feels that spending the money with Microsoft will gain it commercial advantage in the Linux space. If you're a Linux user who's nervous about a possible law suit, who are you going to go to for your Linux?"

So why hasn't Red Hat reached the same conclusions as Novell? "It's probably the case that in Red Hat's estimation it will cost them less to prove Microsoft has no case than to pay Microsoft for indemnification," says D'Aprano.

If D'Aprano is right, Microsoft could be lining up a test case in its sights possibly involving a medium sized Red Hat user in the not too distant future. If so, it would be almost mandatory for Red Hat and other players in the Linux community besides Novell to lend support to protect their own interests as well as those of the targeted user.