Microsoft and the First Linux Patent Suit: Conspiracy Theories Explored

The first Linux patent suit brought is being creatively connected back to Microsoft through two employees that Acacia Technologies Group has hired from Microsoft. What makes it unlikely that Microsoft is behind this is that the targets of the action are both Red Hat and Novell.

Microsoft has zero interest in taking Novell to court right now and it is using the argument of indemnification to encourage others to create similar agreements. If the indemnification doesn’t work – in other words, if you are going to get sued anyway – what’s the point in doing an agreement with Microsoft?

The action is being brought by IP Innovation and Technology Licensing Corp., a subsidiary of Acacia Technologies Group, which specializes in enforcing intellectual property. Novell is evidently a client of Acacia but there is no known connection, other than the two recent Microsoft hires, to Microsoft. (Typically you don’t take a client to court.)

Let’s first explore the conspiracy theory that the open source folks would like to believe; a second, more-likely scenario; and what I think is actually the case.

Building a Conspiracy Theory

Just because it doesn’t appear to make sense for someone to do something doesn’t mean they wouldn’t actually do it. Let’s now assume Microsoft was behind this. What would its goal be in going after both firms? A recent post by Mary Jo Foley at ZDNet got me thinking of this scenario.

If the indemnification holds, Microsoft would now, as an apparent third party, come to Novell’s defense and, because Microsoft was on both sides, easily win on Novell’s behalf. Meanwhile, Red Hat would run up massive legal fees and be pounded by a much more hostile and sustaining action. Win or lose, the lesson would be clear: Licensing with Microsoft has solid benefits that can, after this is over, be more easily demonstrated.

It would be a brilliant strategy if Microsoft could execute it, but Microsoft leaks information like a sieve. It would undoubtedly get caught and the end result would be incredibly painful. In short, I view it as virtually impossible that such a strategy could get approval and the sequence of known events doesn’t map to this strategy at all. The first known action on this IP was against Apple, not any known open source company (IBM appears to have protection).