First patent lawsuit against Linux won't come from MSFT

First patent lawsuit against Linux won't come from MSFT

I predict that the first patent lawsuit against Linux won't come from Microsoft. It probably will not be in Microsoft's interest to fire the first shot in a patent war. The reason is that Microsoft is vulnerable to counterattack, particularly from IBM. I suspect that IBM is the largest holder of patents in the secret list of 283, that Windows also "infringes" most of those patents, and that Microsoft doesn't have a cross-licensing deal in place that covers all of them. A patent attorney I know has likened patents in the software industry to nuclear weapons; if everyone starts using them offensively, it's mutual assured destruction for many of the participants, but everyone has been growing their portfolio for the deterrent effect.

The free software world might also be partially protected by the fact that it can't agree to pay even a tiny royalty for use of a patent; it's either free or not. That defeats the common strategy of people who hold questionable patents: file a complaint about infringement, and offer settlement terms that are just slightly cheaper than prolonged litigation would be. That is, ask lots of people to pay you a little bit of money to go away. The only options, once a legal action is started, are for the developers to back down (withdraw the product) or to fight, and fights can be expensive for both sides. The people with deep pockets have software patents of their own (particularly IBM, and to a lesser extent Novell). Even Red Hat has taken out a couple of patents, though their patent portfolio is probably pretty weak.

The real danger, I would think, is from any patent owners that are no longer in the software business, or who decide to drop out in favor of the patent litigation business. These kinds of folks might well decide that there's only an upside to going after everyone involved in any way with Linux, if they can.