Is Microsoft’s patent claims a real threat to open source?

Microsoft claims that Free and Open Source Software (FOSS) like Linux, which runs a big chunk of corporate America, violates 235 of its patents. In a recent interview with Fortune, Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez alleged that FOSS infringes on no fewer than 235 Microsoft patents.

According to Fortune, they further allege that the Linux kernel, which is the brain behind the Linux system and the core component common to all Linux variants, violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. OpenOffice.org, the open source alternative to the Microsoft Office Suite, is accused of infringing 45, e-mail programs of violating 15, and other software programs/apps of infringing on 68 Microsoft patents.

As Mary Jo Foley points out in her blog, what’s interesting is that Microsoft has not identified the 235 patents. After all, if Microsoft is so confident of its allegations, all it has to do is to point out the patent numbers and anyone can easily view the patents on Google or the US Patent & Trademark Office.

So it seems like a thinly veiled attempt to send a signal to the FOSS community to line up and drop their pants to Microsoft, or rather to find out the reaction from the open source community (including large enterprises that use both Microsoft and Linux computers).

On one hand, open source is slowly and surely gaining traction on Microsoft’s vast array or products, thus threatening its bread and butter businesses. On the other, patent infringement looks like the only thing that Microsoft can do to stop open source in its tracks.

In reality, given the ridiculous number of patents granted just in the US, any tech company will have products that will infringe on multiple patents (it’s just too risky, costly, time consuming and distracting to go after everyone). Given that open source is backed by several large corporations such as IBM and HP, who themselves have a vast arsenals of patents, I wonder what would happen if Microsoft would go after the IBMs and HPs as well (unless they already have patent licensing agreements). What if these companies band together to defend open source!

Overall, open source is pushing Microsoft to the wall and patents may the only weapons that Microsoft has, but it is going to be tricky for Microsoft

And of course, Mark Shuttleworth points out that Microsoft is not the real threat, but that the real threat may be from a small company, possibly a patent holding company, that has a single patent or small portfolio, and goes after those who manufacture, use, or sell open source based products.