A very similar story arose in 2004 (so similar, in fact, that I've seen at least one article confusing the two stories— although it may be the same study being referenced), when a consultancy firm's findings that Linux potentially violates more than 200 Microsoft patents was quoted by Steve Ballmer in a talk to Asian government officials. When the story became public, the author of the study explained the actual findings of the study;
Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does.
The number we found, to anyone familiar with this issue, is so average as to be boring; almost any piece of software potentially infringes at least that many patents.
Software patent law doesn't exist in Europe, and therefore the veiled threat that Microsoft is posing doesn't apply to companies outside the US. In addition, Brad Smith, Microsoft's senior vice president and general counsel since 2002, has indicated that Microsoft won't be suing anyone over the patents. Instead, they have been licensing their patents to other companies in exchange for either royalties or access to their patents (a "cross-licensing" deal.)
As yet, Microsoft haven't actually specified what specific patents are being violated by Free software. But Smith does break down the total number allegedly violated (235) into categories. He says that the Linux kernel violates 42 Microsoft patents. The Linux graphical user interfaces violates another 65. The Open Office suite of programs infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.
Linus Torvalds (the man behind the Linux kernel) says that the claims are simply FUD;
Can you get a list of which ones? Before that, it's just FUD, and there's not a whole lot I can say or do. Is there prior art? Are they trivial and obvious to one skilled in the art? Would we need to work around them? We don't know, because all I've heard so far is just FUD.
If MS actually _wanted_ us to not infringe their patents, they'd tell us. Since they don't, that must mean that they actually prefer the FUD.
Creating and exploiting fear, uncertainty and doubt about whether it's "safe" for a company to use Free Software in a corporate environment certainly seems to be more useful to Microsoft as a marketing tool than the possible financial rewards of bringing individual patent violation cases to court; the idea that Free Software doesn't cost money because you'll be hit with an unexpected legal bill in the future is a powerful marketing force that won't go away until Microsoft want it to. If any of the patents were actually challenged, at best it would result in a situation where developers would be able to work around infringing the patents and release "safe" versions of the software. At worst, the patents would be invalidated and Microsoft's cross-licencing strength would start to dwindle.
So expect the same story to go round a few more times yet…
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