For the second time in two years, Microsoft CEO Steve Ballmer last week played the patent infringement card against Linux and again set off a round of negative speculation and vendor clarifications.
In addition, experts wondered why Microsoft after a few years of trying to be a responsible industry leader was reverting to such negative tactics.
"I don't understand why Microsoft wants to open up this particular Pandora's box again," says Dwight Davis, vice president of research firm Ovum Summit. "This seems like a throwback to the Microsoft negativity and bullying that wasn't very appreciated in the past and it won't be appreciated this time around."
Last week at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Linux "uses our intellectual property."
Two years ago at the Microsoft-sponsored Asian Government Leaders summit in Singapore, Ballmer said Linux infringes on more than 200 patents. He said, "someday, for all countries that are entering WTO [the World Trade Organization], somebody will come and look for money to pay for the patent rights for that intellectual property."
On the patent claim, Ballmer was citing a controversial 2004 survey by Open Source Risk Management (OSRM), a firm that sells risk insurance, that said technology within the Linux kernel potentially infringes on some 283 patents, 27 of which were held by Microsoft.
Ballmer's comments come nearly a month after Microsoft and Novell signed a business and technology partnership that included an agreement not to assert patent and intellectual property rights. The agreement runs through 2012.
Ballmer said the deal with Novell would protect users of SUSE Linux, but he went on to say that Microsoft wanted to "get the appropriate economic return for our shareholders from our innovation," suggesting that users and vendors of other versions of Linux could be at risk of patent infringement lawsuits.
But Microsoft and Novell took conflicting positions on the intellectual property implications within their agreement.
A Microsoft spokesman said as part of the agreement with Novell, "Microsoft is providing access to thousands of patents." The spokesman, however, would not reveal what those patents are. "Microsoft does not publicly list patent claims used by a product or by a component, as is standard with most companies in the industry," he said.
An open letter issued by Novell CEO Ron Hovsepian said, "our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."
Some observers say the possibility of Ballmer asserting rights to patents that Linux may have potentially infringed upon is slim.
"At this point I think it is more of an intimidation tactic," says Laura DiDio, an analyst with the Yankee Group. "To tell you the truth, if I am Joe IT, I don't know if this is much of a deterrent to me. Quite frankly, you have to prove [patent infringement]."
Proving such an occurrence is tricky. The 2-year-old OSRM study cited by Ballmer found that not a single case of potential patent infringement around the Linux kernel had been validated by a court judgment. The study said on average only half of all patent infringement accusations are found to be valid.
As part of the deal between Microsoft and Novell, the pair is making payments to each other not to assert patent claims. Novell is paying US$40 million to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations, and Microsoft is paying Novell US$108 million for a similar agreement that says Novell won't sue Microsoft users.
Experts have speculated the Microsoft-Novell deal was, in part, a swipe at Linux leader Red Hat and that Ballmer's recent comments over intellectual property were in that vain.
"I guess that could be the rationale, but is Red Hat that much of threat to stoop to this level?" said Ovum Summit's Davis.