First Linux Patent Infringement Suit Comes from Familiar Plaintiff

Just days ago, Red Hat publicly responded to a very thinly veiled threat from Microsoft CEO Steve Ballmer that its Enterprise Linux users might eventually owe Microsoft some money by posting, "We are also aware of no patent lawsuit against Linux. Ever. Anywhere." Today, the company learned one was actually being filed against both it and Novell in the patent trial capital of America: Marshall, Texas.

The plaintiff is a familiar one: IP Innovation, LLC, the very same company that filed an infringement suit against Apple last April. The subject is also the very same patent: an old Xerox PARC filing renewed in 1991, #5,072,412, for "User interface with multiple workspaces for sharing display system objects."

[Editor's Note: IP Innovation, LLC is not to be confused with IP Innovations, LLC (plural), a patent search services firm for prospective patent filers, based in Washington, DC.]

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As with the Apple case, the complaint in this new case appears to have been compiled using software, in some cases apparently using fill-in-the-blank fields whose entries are occasionally misspelled. It makes no argument other than Red Hat and Novell selling operating systems whose operating characteristics allegedly intentionally infringing upon the plaintiff's IP.

It may perhaps be among the most uninteresting filings ever submitted in Marshall court, but what could become interesting -- assuming this case ever reaches trial -- is the defense. If someone were to have a legitimate claim to intellectual property that appears in various distributions of Linux, then does the mere distribution of that IP constitute infringement? Would it be willful infringement, especially considering the openly shared positions of proponents of free software - or, more to the point, could someone make the case that it is willful infringement, enough to convince seven out of twelve jurors?

How would Linux distributors legitimately defend the IP integrity of their product? Would they risk their reputations by guaranteeing to a court that Linux' contents absolutely violate no one else's portfolios, at least not intentionally? Or would they instead defer responsibility to the open source community that created the work, by stating they take the community at its word?

If defendants opt for the latter course of action, the burden of proof could end up on the developers' shoulders after all.

Which is why Novell's and Red Hat's response could be of considerable importance not just to Linux distributors but to Microsoft, which apparently intends to maintain its public stance that users of at least non-Novell distributions of Linux may one day find themselves liable. If IP Innovation's contention goes down to defeat, it could save Microsoft a world of trouble and negative scrutiny later.

But if it has legs, Microsoft could be taking notes, and could make use of what it discovers later. So those who suspect Microsoft may be directly involved in this case - even though it involves its new partner in covenant, Novell - may come to realize Microsoft may best benefit for now by staying on the sidelines.

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