What if Linux does infringe on Microsoft intellectual property?

There have been a lot of words written about the comments made by Microsoft's CEO Steve Ballmer during a Q&A session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle last week (you know, where he said that Linux used intellectual property patented by Microsoft). 

Most seem to think that the claims are nothing more than FUD on the part of Microsoft and that nothing will come of it.  But here's a thought to ponder - what if it's true and Linux does indeed infringe on one of more of Microsoft's patents?

You have to admit that there's at least a chance that Linux does indeed infringe on Microsoft's patentsCome on, no matter how much of a Linux fan you are, you have to admit that there's at least a chance that Linux does indeed infringe on Microsoft's patents.  After all, Microsoft does hold a lot of patents and while Linux is open source and we can all take a look at the source code, only Microsoft has access to most of its source code so it isn't all that difficult for it to prove – to itself at any rate – that there are IP infringements contained in Linux.  After all, before IBM handed over some 500 patents to the open source community, it's pretty clear that Linux was infringing some of them.  Given that, why is it so hard to believe that the same isn't going on with Microsoft?

Some have called on Microsoft to come clear on what the infringements are (Mary Jo Foley, my blogging colleague here at ZDNet has written a couple of posts along those lines).  That would certainly be interesting but there's no reason for Microsoft to do this.  It would dismiss the speculations about the claim being FUD, but it wouldn't achieve anything else.  Microsoft can just sit on this information and use it as leverage in deals that it wants to cut or future legal action that it might feel it needs to take.  After all, the Open Invention Network has said it is ready to leverage the IP portfolio that it has accumulated to maintain the open patent environment.  Why shouldn't Microsoft do the same to protect its business model?  It might not be the "nice" thing to do, but this is business after all. (And if you don't like that, consider how you'd feel if whoever is heading the company you work for started taking their eye off the business ball - I bet you'd spend some time updating your résumé, just in case!) 

But what would it mean to Linux users if the operating system they use infringed IP belonging to Microsoft?  Well, I'm pretty sure that it would mean absolutely nothing to all the geeks that use Linux for personal and home use.  I don't see Microsoft ever knocking on anyone's door looking to collect a "Linux tax", it's just not worth the hassle.   

But what about commercial uses of Linux?  There things could be different but I still see the courts being a long way off.  No doubt Microsoft could bury the competition in legal paperwork and just sit back and wait for them to go bust, but that would do nothing but generate a shed-load of bad press.  The best thing that Microsoft could do would be to sit on this information and use it to cut deals - or use it to generate goodwill and donate the patents to the open source community…

... did I just see a pig flying past my office window?