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If you thought that Microsoft’s deal with Novell was the end of Redmond v. Linux litigation, think again. In an unsettling story carried by Fortune over the weekend, Microsoft’s General Counsel claims that free and open-source software (FOSS) violates exactly 235 Microsoft patents: Linux kernel (42), Linux GUI (65), Open Office suite (45), email (15), and then another 68 patents violated across a variety of FOSS wares — the first time Microsoft has provided such specificity. Microsoft goes so far as to claim that that is the reason for open-source software’s high-quality. However, Eben Moglen, legal counsel to the Free Software Foundation and head of the Software Freedom Law Center, says that software is a mathematical algorithm which can not be patented and easily “invented around” — a case made even stronger last month by the Supreme Court’s unanimous ruling undermining patent trolls. Still, FOSS allies such as Sony, Philips, Novell, Red Hat and NEC were already banded together under the Open Invention Network with their own collection of patents meant to protect themselves from the kind of litigious quagmire Microsoft seems poised to launch. Ironically, that very pact between Microsoft, Novell, and more recently Dell makes Microsoft an uneasy Linux distributor (depending upon your legal interpretation of the deal) which could leave them powerless to bring patent suits against Linux customers and distributors. With Microsoft facing the Google goliath and a general consumer malaise, it’s really no surprise to find them prepped for a patent offensive in search of additional revenue. However, our biggest fear is for this sudden increase in posturing by Ballmer and Co. to turn into a full blown series of lawsuits and countersuits sure to stifle innovation into the next decade.

[Via Scobleizer]

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