FOSS (Free and Open Source Software) had some trouble in 2006 when Microsoft submitted 235 patents that were allegedly violated by FOSS. Microsoft created these patents in order to collect royalties from companies in the “free world” (companies/people using free software). Eben Moglen of the Free Software Foundation contended that software is a mathematical algorithm and is not patentable. Moglen wrote, “It’s a tinderbox. As the commercial confrontation between free software and software-that’s-a-product becomes more fierce, patent law’s going to be the terrain on which a big piece of the war’s going to be fought.” FOSS has powerful corporate patrons and allies. So if Microsoft ever tried to sue Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows.
In the 1970s and 1980s, software companies relied mainly on “trade secrets” doctrine and copyright law to protect their products. But everything changed in the 1990s. The copyright law was providing less protection to software than companies hoped for and the “trade secrets” doctrine was becoming unworkable because the secret itself (the source code) had to be revealed to an unlimited number of other people/companies. With the internet, Microsoft applied for 1,411 patents in 2002. By 2004 they submitted 3,780 patents. After that Microsoft had three choices. First they could do nothing and donate the patents to the development community. Second they could start suing other companies that were using their patents. Or third, they could begin licensing its patents to other companies for either royalties or access to their patents, which would be a cross-licensing deal. So they took the third option.
Microsoft later made a deal with Novell. They agreed not to sue each other’s customers for patent infringement, which is okay because it’s something that Richard Stallman’s GPL
Cited: Article: “Microsoft takes on the free world” Link: http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index2.htm