Some BLOG articles have been wondering what happened recently to make Microsoft re-re-re-announce their claim that various FLOSS projects infringe on their patents. A few ideas have come to my mind about a plausible explanation. Beyond the obvious problem that Microsoft has of the massive growth in the FLOSS marketplace, and the inability of incumbent vendors to compete against a marketplace that harnesses far more software developers, there have been some key article and legal activities.
In the United States, it was a lower court that expanded patent law to allow software patents to be granted. It will take either another court case to overturn this bad precedent or action by the US government to change this. Maybe a software patent lawsuit against FLOSS projects is exactly what is needed to eradicate software patents entirely.
Microsoft recently "won" a Supreme Court patent infringement case. This case included an amicus brief from the Software Freedom Law Center's (SFLC) that argued generally against the patentability of software. While the court ruling (text on Groklaw) didn't directly touch on the issue of patentability of software, the ruling did seem to acknowledge some of the arguments.
To see nature of this debate, please read an article in Free Software Magazine from January that spoke about this case: Software ain't patentable, damn it!
The SFLC last month also published an article Windows vs. Linux: The Patent Tax which states that, "On the other hand, free operating systems based on Linux have never been found guilty of patent infringement, making Linux a patent-tax-free alternative to Window".
Given the track record of Microsoft loosing more software patent infringement cases than it has won, and the fact that the SFLC is claiming that the Linux project has never lost a case (obvious since no case has ever been launched), this might just have irked the executives at Microsoft.
The amicus brief and articles on the SFLC website suggest that this legal resource is ready to take on software patents, and to be willing to take it all the way to the Supreme Court. One of the best speakers and lawyers I have ever heard speaking, Eben Moglen, has left his position at the Free Software Foundation to be able to dedicate more time to the SFLC. In order to do this they need to have some unwitting accomplice who will be silly enough to sue the community, and have the community aggressively defend itself against this attack.
See: Open Invention Network Comments On Article In Fortune
Is Microsoft going to be that unwitting accomplice to the SFLC?
Poor Microsoft..... I'm not sure they realize who might really be in control of this situation.
YouTube video: Eben Moglen: "the be very afraid tour"
