Microsoft has recently started making noise about Linux patent infringement again. Microsoft has maintained a license rather than litigate approach for years and they signed a license deal recently with Novell to allow them license for their Linux installation. The only thing new is the number of patents that Microsoft claims that Linux infringes on, 235 according to Microsoft. Open Office infringes on 45 directly.

My initial reaction was to condemn Microsoft for trying to create FUD around Linux and the Open Source movement. I think in reality is fairly common reaction, if Microsoft is dealing with a small company one of the first tools their use to keep them in line is the patent stick. Why don’t they use this approach with IBM, Sun or Apple? I think all of these company have sufficient patent arsenal that a legal battle would be a no win situation for both companies, like a nuclear war. If Linux and Open Source really want to be feel of these threats they need to develop their patent arsenal. Many companies like have recently donated patents to Open Source and this needs to continue.

The last estimate I heard was that average cost to defeat a patent was approximate $2M. The cost to register a patent is somewhere around $100K. With this sort of economics it doesn’t make sense to try to defeat Microsoft on a patent by patent basis. Instead the Open Source community needs to include patent registration as part of its process. It will be expensive and it will slow down the process but it will provide a defense against in the patent coldwar.