Report: Microsoft says open source violates 235 patents

Top Microsoft lawyer alleges in a magazine interview that the Linux kernel and violate hundreds of the company's patents.

Microsoft claims that free and open-source software violates 235 of its patents, according to a magazine report published Sunday.

In an , Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.

It is not entirely clear how Microsoft might proceed in enforcing these patents, but the company has been encouraging large tech companies that depend on Linux to ink patent deals, starting with its controversial pact with Novell last November. Microsoft has also cited Linux protection playing a role in recent patent swap deals with Samsung and Fuji Xerox. Microsoft has also had discussions but not reached a deal with Red Hat, as noted in the Fortune article.

Microsoft CEO Steve Ballmer is also quoted in the article as saying Microsoft's open-source competitors need to "play by the same rules as the rest of the business."

"What's fair is fair," Ballmer told Fortune. "We live in a world where we honor, and support the honoring of, intellectual property."

The story notes that some big tech proponents of open source have been stockpiling intellectual property as part of the Open Invention Network, set up in 2005 by folks like Sony, Red Hat, IBM, NEC and Philips. The article surmises that if Microsoft were to go after open source, these companies' combined know-how might give it some patent weapons to go after Windows.

A Microsoft representative did not immediately respond to an e-mail seeking comment.

Given how deeply entrenched open-source software has become in the computing industry, taking direct legal action against the open-source realm would be a complicated, hackle-raising undertaking for Microsoft. Customers use open-source software widely, and many major computing companies--IBM, Dell, Sun Microsystems, Hewlett-Packard, Motorola and Oracle, for example--support Linux work directly.

It's not the first time that open-source patent concerns have arisen. A 2004 study by a Open Source Risk Management, a company selling insurance against risks of using open-source software, concluded that Linux could violate at least 283 patents, 27 of them Microsoft patents.

Patents and the open-source movement get along awkwardly at best. Patent law gives proprietary, exclusive rights to patent holders, but open-source programming is built on the idea of free sharing. Newer open-source licenses sometimes address the issue by requiring contributors to open-source projects to grant users and developers of the software a perpetual, royalty-free license to any patents that relate to the contribution.

Different companies have dealt in different ways with the open-source patent conundrum. For example, HP has taken a pro-patent stance, while IBM, Nokia, Sun and others have granted some rights to use some of their patents in open-source software.

The Open Invention Network remains a relatively young effort, but it has attracted participation this year from proprietary software giant Oracle and from Linux support seller Canonical. A company may license the network's patents for free as long as they promise not to assert any patent claims against those involved in the "Linux environment."

The Free Software Foundation is working on a new draft of the General Public License, one element of which will ban partnerships such as the one struck by Novell and Microsoft.

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