Steve Ballmer insists that Linux infringes Microsoft patents and that Microsoft’s agreement with Novell proves his point. Meanwhile, Novell insists that Linux does not infringe Microsoft patents and that its agreement with Microsoft was prompted purely by logical, business cases. Like some high-tech plea agreement, Novell states:
Patent concerns did not drive our entry into this agreement. Novell makes no admission that its Linux and open source offerings infringe on any other parties’ patents. Our position has not changed as a result of this agreement.
So where does the truth lay? No one knows for sure. Well, perhaps Microsoft believes it knows, but the company has been making the same claims for more than four years without presenting any proof. Can someone say “SCO?” Ignoring Microsoft, what’s the deal with software patents? How big a threat do they pose to open source? And is that threat any different than other other risk posed by closed-source code?
By my count, there are in excess of 230,000 issued and active “software” patents in the United States today. (Although a true assessment of what constitutes a software patent would require a more detailed investigation, my estimate is based on the number of issued and active U.S. patents listed in patent classes 345 and 700-725. Operating system software, for example, would likely fall into one or more U.S. patent classes that are included in this group.) The largest holders of “software” patents are, in descending order, IBM, Hewlett-Packard, Hitachi,…
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