Linux vendors and developers didn't get to relax for long after an August court ruling had the effect of ending SCO's copyright lawsuit against IBM and Novell over their distributions of Linux. Last week, IP Innovation LLC filed a patent claim against Novell and Linux vendor Red Hat. In the complaint, IP Innovation asks the court to award both damages and an injunction prohibiting the two companies from continuing to distribute Linux.
"For us this is the start of a new anti-Linux campaign," says Pieter Hintjens, a Belgian software developer and president of the Foundation for a Free Infrastructure, which campaigns against software patents. The complaint cites three Xerox patents dated 1991, 1995 and 1996. They may have been intended to cover the Star computer, whose interface influenced both the Apple Mac and Windows. IP Innovation also cited the earliest patent in its April 2007 action against Apple over its OS X v 10.4 Tiger operating system, in which it asked for $20m (£10m) in damages. That was settled out of court in June; terms of the settlement were not released.
The language of the patents themselves is so vague that it's difficult to tell what they are trying to describe. But the owner doesn't have to care, if companies will pay up rather than risk the kind of expensive and lengthy litigation that has put SCO into Chapter 11 bankruptcy protection. Novell is now demanding that SCO be required to hand over the money SCO collected in licensing fees from Microsoft and Sun. An SCO SEC filing estimates SCO's liability to Novell at $30m.
To many open-source advocates, Microsoft seems to be implicated in the new patent suit. IP Innovation is a wholly owned subsidiary of Acacia Technologies Group, a California company. Its dozens of press releases announcing licensing deals from this year alone boast a constantly growing patent portfolio, covering a wide variety of commonly used technologies (81, as of September). Among its corporate officers are three former Microsoft executives, one of whom specialised in managing intellectual property. However, Acacia has also sued Microsoft in the past.
Suspicion in the open-source world has been at a high since last week, when Microsoft chief executive Steve Ballmer told a London question-and-answer session that: "People who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually compensate us."
However, most open source licences preclude charging this type of fee. Hintjens believes these statements, "seem to indicate that Microsoft are now rolling out their long-awaited strategy of using patent claims on free software to try to create an alternative income stream".
In May, Microsoft general counsel Brad Smith told Fortune magazine that various portions of the GNU/Linux operating system violate 235 of Microsoft's patents. In response, Red Hat promised its customers that it would replace any software eventually found to be infringing - but noted that there had never been any patent suits against Linux, anywhere. That, of course, was then.
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