IPcentral readers may have heard Microsoft executive, Steve Ballmer’s claim, that Linux infringes some of his company’s patents. The statement obviously put more fuel in the fire among various FOSS sentiments about Microsoft working with Novell, despite it being hard to see who loses from the partnership. FOSS developers have another option for safeguarding their work form infringement claims. Customers can feel more secure from IP assertions. Resulting interoperability between Linux and Microsoft technologies will benefit the industry. It seems like folks who don't like seeing Microsoft and Novell as pals are those who view others' gain as their loss.

CNet has a great article outlining commentary on the developments, including remarks by Novell that its agreement with Microsoft does not pose any kind of admission of Linux containing code that infringes Microsoft’s patents.

(Novell’s) Hovsepian … took issue with comments made by CEO Steve Ballmer last week that Linux "uses our patented (IP)."

The deal between Microsoft and Novell calls for the two companies not to sue each other's customers over patent issues... But that patent provision, Hovsepian said, did not amount to an admission that Suse Linux infringes on Microsoft's patents.

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft (IP). When we entered the ...agreement ...Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents…"

Now, legal certainty is a funny thing. Whether Linux infringes Microsoft's patents is up for the courts and USPTO to decide, not Steve Ballmer. The fact that the FOSS community takes such issue with an otherwise routine disagreement over possible patent infringement, that does not necessarily deter from the partnership between the two competitors, shows their inability to handle ambiguity and contradiction; in other words, the realities of the commercial landscape.

I admit some of Microsoft’s early gestures towards the FOSS community were unfriendly. However, looking over the past year, Microsoft has extended its hand to partner with FOSS entities or to work for interoperability standards. Companies like Red Hat even commended Microsoft’s FOSS efforts, until now, when one of its competitors got a good deal and it got left as a pouting adolescent out of the big tent. Hey, don’t complain about the rain if you choose to stay outside.

In the Microsoft statement released Monday, Microsoft called the legal aspect of the deal an effort to "put in place a new (IP) bridge between proprietary and open-source software."

...Microsoft has tried to forge similar legal and technical agreements with other Linux distributors... However, there is no deal with ...Red Hat. The day after the announced Novell deal, Red Hat responded with a statement saying that it will not pay an "innovation tax."

Even commentary from the Free Software Foundation suggests that Red Hat, well, may be boiling red mad, because of its competitor’s gain.

Eben Moglen, the attorney representing the Free Software Foundation, which created the (GPL) used by Linux, said Microsoft's deal with Novell puts Red Hat at a competitive disadvantage.

"Either customers desert Red Hat to go to Novell, to get safety, or Red Hat will be forced into a similar deal with Microsoft," Moglen told Reuters.

Several industry observers are more optimistic about the Microsoft-Novell pact.

Raven Zachary, an analyst at The 451 Group, said in a recent interview that the agreement gave new prominence to legal protection… "Indemnification was a hot issue a few years ago, and now it seems to be back... I think it elevates the level of fear."

Another analyst said the companies' verbal barbs are far from shocking… "This shouldn't surprise anybody," said Brad Reback, a CIBC World Markets analyst. "It's just corporate posturing, and the agreement remains intact."

Patent attorney Bruce Sunstein, of Bromberg & Sunstein in Boston, shares that sentiment. He noted that both companies stand to gain from the agreement and, as a result, have a strong incentive to keep it in place ... "Microsoft mainly wants to sell licenses...and if (Microsoft leaders) can find a way to do that and sit in the Linux environment, that's good for them… Fundamentally, they're not interested in patent litigation... they're interested in selling licenses."

Many FOSS supporters hail the need for interoperability in the technological environment, and more certainty under patent law, for their movement. But what efforts have they put forth towards these goals? What do they propose? In the latest debacle, marked by calls from various FOSS enttities for Novell to renounce its partnership with Microsoft, and claims that Novell is unfairly beating its rival Linux distributions, some FOSS segments have shown themselves to fall onto their own swords, unwilling to consider perhaps the most step to date made by "proprietary" and "open" entities to achieve what even they regard as critical goals.