COMMENTS ON OPEN-SOURCE IP: Microsoft recently made public statements that some say are an attempt to slow the rapid adoption ofOS software. For example, Microsoft CEO Steve Ballmer recently commented that the Linux operating system violates 228 separate software patents, suggesting that Linux users are likely to get sued for patent infringement. No specific patents were identified.

This commentary states that it is no surprise that the company with the most to lose by the adoption of OS would try to slow its adoption. A 2004 Forester survey of 140 large North American companies revealed that 46% of these companies already are using OS software and another 14% plan to do so soon. With 60% of the large North American companies allegedly using OS software, the theory goes that Microsoft is keen on putting a hex on users and developers that are migrating to OS systems

"Between Microsoft's posturing and the latest guidance from the FFIEC, itis clear that companies migrating to Open Source need to tread carefully,"said JamesGatto, an intellectual property partner in the Northern Virginia office ofPillsbury Winthrop. "However, there are a number of strategies and tactics that can mitigate potential liability." Gatto noted that some unique legal issues arise with OS software but that there are unique benefits as well.

The suggestion that users of OS softwareare more likely to be sued for patent infringement than those that useproprietary software, like Microsoft's does not appear supported by actual experience. It is interesting to note that while Microsoft has had several dozen patent infringement lawsuits filed against it in the past few years, none have been reported against Linux, the most popular of all OS programs.

It is also not correct that OS software can not be patented. Many companies that are involved with OS have significant patent portfolios and have declared that they will use these patents defensively to protect against patent lawsuits. For example, in October, Novell vowed to use its patent portfolio to protect open source software products and voiced its oppositionto proposed changes to the European Union software directive that would ease restrictions on software patents. Jeremy Bevan, a Novell VP, added, "there have been various rumors about the possibility of patents in open source technology and what will happen," saying that the company wanted to reassure its customers that "there's no greater risk" with open source than with proprietary technology.