Yesterday I had reported on how Microsoft had claimed that Linux was in violation of more than 200 Microsoft software patents. As fate would have it, Linus Torvalds, the Linux kernel developer, fired back by saying the it is "more likely that Microsoft violates (more) patents than Linux does." Torvalds statement was further bolstered by the OIN (Open Invention Network), a group that helps to facilitate the legal regards of open source patents for the likes of Sony, IBM, and Nokia.

Torvalds also added that Microsoft has provided no substantial proof to back its claims of patent infringement. OIN CEO Jerry Rosenthal also notes that "there has never been a patent lawsuit against Linux" and argues that "Linux has excellent intellectual property vetting."

No one knows where this is heading despite Microsoft's highly dubious claim of 230 Microsoft owned patent infringements. But because of the incredibly vague nature of software patents, it is possible that Linux developers have infringed upon some Microsoft patents. To provide a simple example; a few lines of code developed by Microsoft may have minor similarities to some Linux code, despite their being no intentions upon the part(s) of Linux developers to steal said source code. It could be one line of code that Microsoft is whining over, or it could be many.

But This begs a couple questions. Microsoft keeps much of its source code secret. So how could the Linux community steal something they can't even see. Furthermore, it is highly unlikely that Microsoft will expose their source code (even if court ordered) to the masses, who may steal it. Those source code pirates could set up shop overseas, far from the reaches of litigation.

In what can only be termed as a scorched earth approach, the Linux community has promised to fire back if Microsoft chooses to reveal the stolen source and tries to sue Linux developers, distributors, and end users. The OIN already holds over 100 patents in the realm of e-commerce and Internet communications. Many of these patents are being violated by Microsoft. The OIN has turned a blind eye to this infringement, but will unleash a torrent of lawyers upon Microsoft if they pursue legal tactics against Linux.

In the end, once everybody has gotten tired of court appearances and legal fees, there is the possibility that Microsoft and Linux will hammer out some sort of agreement that will allow each party to use each others patented source code without the threat of lawsuit. Simply put, they would exchange patent rights on a per patent basis.

It all sounds pretty stupid, right? Well, if history is doomed to repeat itself, perhaps Microsoft will go the way of SCO. SCO had claimed that Linux was in violation of their patents, never provided proof, but was eventually found to be lying. Not to say Microsoft is lying, but this tactic may help to bolster Microsoft sales. Some companies may become fearful of using open source software for what Microsoft might do to them. If those companies can't use Linux, them all they can use will be Microsoft.

Simple solution; burn down the patent office, rebuild it, adopt the doctrine that all software source code must be disclosed. If someone violates on of your patents, you get to violate on of theirs. Fair enough?