Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.[..]

Smith was having Microsoft’s lawyers figure out how many of its patents were being infringed by free and open-source software. Gutierrez refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.

 

But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

Eben Moglen, founding director of the Software Freedom Law Center, called on Microsoft to disclose the patent numbers of the 235 patents it believes are being infringed upon so that the free software community can evaluate its claims.

"They should name their patents," Moglen said. "They should put up or shut up."

"Microsoft could have chosen to litigate many years ago, but we have decided not to do that," Gutierrez said. Instead, in the interest of making sure programs that include open-source technology work well with Microsoft products and vice versa, the company will continue to pursue similar deals.

Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM, Sony, Philips, Novell, Red Hat and NEC - set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux.

So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It’s a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers.

You would be wise to listen to the customers you’re threatening to sue - they can leave you, especially if you give them motivation. Remember, they wouldn’t be motivated unless your products were somehow missing the mark.

All of which is to say - no amount of fear can stop the rise of free media, or free software (they are the same, after all). The community is vastly more innovative and powerful than a single company. And you will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities - or the Fortune 500 - that have found value in the wisdom of the open source community.

Open standards and open source software are literally changing the face of the planet - creating opportunity wherever the network can reach.

That’s not a genie any litigator I know can put back in a bottle.

• Report: Microsoft says open source violates 235 patents (CNET)
• Microsoft’s Open Letter to Open Source (Microsoft Watch)