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Red Hat has called on Microsoft to resist threatening developers and customers with prosecution over possible infringements of patented technologies in Linux

Mark Webbink, Red Hat’s deputy general counsel, on Wednesday called on Microsoft to make a written pledge not to threaten developers with infringement claims.

In the event of disputes, Microsoft should approach Linux distributors with complaints and avoid SCO Group’s tactic of prosecuting customers, he says.

Speaking at LinuxWorld in San Francisco, California, Webbink proclaimed: “If Microsoft has IP that needs to be respected, [then] come to the companies… leave our customers out of the middle – it’s the civil thing to do.”

The presence of IP in Linux is both a murky subject and keen talking point. According to Open Source Risk Management (OSRM), also appearing at LinuxWorld after Webbink, 15,000 patent issues are “relevant” to the Linux, Apache, MySQL and Perl/Python (LAMP) stack, of which 300 are “colorable claims” relevant to Linux. A colorable claim is something that may not be legitimate but merely appears to have legitimacy.

According to Webbink, Microsoft’s goal is to ramp up its of number patent filings. He noted Microsoft’s wish to file 3,000 patents a year - compared to approximately 200 in 1994.

The problem this poses for ISVs and customers is the cost associated with fighting patent infringement actions. Simply researching each patent can cost $5,000 per patent, meaning organizations may settle in the early stages of a case to minimize their costs. “It’s not a game, it’s expensive for a company to look at a patent portfolio,” Webbink said

Worse, most software patents are invalid. Webbink quoted research that found 67 per cent of all software patents filed between 1988 and 1996 did not stand up, while one in two claims are currently thrown out rather than registered by the US Patent and Trademark Office (USPTO).

This leads Webbink to conclude that Microsoft, and other companies also aggressively filing patents, are doing so to protect their business and restrict the competition. “Patents are about maintaining market share and preventing others competing effectively,” he said.

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