Apprehension on the part of Red Hat could force it into a license agreement with Microsoft.
Microsofts scare tactics in what could be considered an attempt to coerce Red Hat into a patent agreement similar to one Novell penned last November are not unusual for this early stage in the process, according to a patent attorney.
Microsoft CEO Steve Ballmer on Oct. 1 told a small group of Web 2.0 developers at the companys London office that "People who use Red Hat, at least with respect to our intellectual property,
in a sense, have an obligation to eventually compensate us."
"The typical and conservative approach is to create apprehension on the part of the supplier of the supposedly infringing article and seek to have them pay for a license for their customers," Scott Weingaertner, a partner in New York-based law firm King & Spaldings Intellectual Property Group, told eWEEK.
That is the approach Microsoft has been taking since it claimed in May that free and open-source software violated 235 of its patents. The software maker, based in Redmond, Wash., has so far declined to specify which patents those are.
Click here to read more about Microsofts claims that open-source technology violates 235 of its patents.
"Often, the two sides begin by revealing little more than is absolutely necessary and they see what information they can extract from the other side. If that doesnt work, then the intellectual property owner may threaten or initiate legal action and even attempt to up the ante by threatening an injunction," Weingaertner said.
There may be wisdom to Microsofts saber rattling, as Weingaertner said he believes that most companies would probably take Ballmers statements seriously, while at the same time investigating their various defensive options.
To read about why Red Hat believes customers can deploy Linux with confidence, click here.
But the burden is on the intellectual property owner to prove infringement, and doing so could be an expensive and time-consuming undertaking, which could be further complicated if the accused party is be able to mount any defenses, he said.
"More specifically, though, the question is whether Microsoft really does have relevant patent protection or not, and is able to make out a successful case of infringement. Even beginning to evaluate Microsofts patent position here is a significant and potentially quite costly undertaking," he said.
While Weingaertner said it would be premature to comment on the merits of any potential claim by Microsoft, he did say, "We do not know whether Microsoft has sent any letters placing anyone on actual notice of infringement, which would be a typical step taken by a patentee seeking to vindicate its rights.
"Ultimately, a patentee seeking relief must resort to the courts if the alleged infringer fails to give the patentee what it is seeking, and doing so requires that the patentee satisfy obligations to investigate the charges in advance and to ensure that the case has been brought with good reason," he said.
Click here to read about why Microsoft sees no conflict with its patent and open-source initiatives.
And, if an actual dispute were to arise leading to a filed lawsuit, it would likely proceed on the basis of a small set of patents, far fewer than the 235 supposedly relevant patents, Weingaertner said, noting that both sides could theoretically initiate a lawsuit.
A patentee like Microsoft could sue, but an accused infringer could also request a court order saying it does not infringe the other partys patents or that the patents are invalid.
"Any impact would largely depend on who was the first mover. One likely impact of such a lawsuit, regardless of who sues, is that software companies may pay closer attention to patents," he said.
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