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IP Innovation LLC: Patsy or Proxy?

By Brian Proffitt
Managing Editor

For the record, (and I realize that I might be opening myself to
calls of “naive”) I am not 100 percent convinced that this
pioneering patent infringement lawsuit is a direct result of
Microsoft’s planning.

I will concede that Pamela Jones at Groklaw did some
excellent digging
to find two really suspicious-looking
connections between the patent-litigation happy IP Innovation LLC
and our favorite monopolist, and I will really not be surprised if
these connections do turn out to be legitimate controlling puppet
strings from Redmond.

I am resisting, however, slapping the accusation on Microsoft
right out of the gate. Here’s why…

First, in the world of IT, it’s a little bit hard to find any
company without some sort of connection to Microsoft. Granted, this
isn’t six degrees of separation–it is a very close connection, and
I believe the most compelling evidence that Redmond is playing a
hand in this litigation.

The thing about the timing with Ballmer’s statements, though, is
not enough for me. First, with Linux being a multi-billion dollar
industry, Ballmer’s implication that someone would have to cough up
some dough for Linux’ alleged patent infringements is really about
as insightful as telling someone in London that it’s going to be
foggy at least one day next year. It was bound to happen sooner or
later, and sadly Microsoft isn’t the only greedy corporation out
there.

It is also quite possible that Ballmer knew specifically that
this case was coming–gossip travels fast in this industry. For
instance, I’ve known about some big announcements in the past long
before they were publicly known. It’s the way things are in this
business. It’s conceivable that Microsoft was aware this was
coming, but knowing something versus being at fault for something
are two different things.

The big three reasons I am not convinced Redmond is directly
involved in this suit is the nature of the suit itself. First, it’s
going after Red Hat and Novell directly–not their customers, which
runs a little counter to Ballmer’s ravings. Second, Novell was
named, which on the surface seems counterintuitive. You think
Microsoft would sue its own partner? )Well, actually, they probably
would–let me put that on hold for a second.) Third, the patent
being used seems to be some old Xerox Parq patent that should be
easy to demonstrate prior art. I would have expected a
Microsoft-run effort to be a little more damaging.

Now, with all that said, I am going to take the other side of
these arguments, because they can also be evidence for–not
against–Microsoft’s involvement.

First, suing Red Hat and Novell directly could be a Microsoft
plan because after the trial run of SCO v. The Planet, Redmond
would have certainly learned that suing customers of Linux
companies stirs up all manner of trouble from within and without
the open source community. Sue Novell and Red Hat via proxy, and
Redmond avoids waking the sleeping giants of IBM’s and Sun’s patent
portfolios. (If this sounds like a certain Cold War-era brush war
to you, you’re not alone.)

Suing Novell seems silly on the surface, but when I thought
about it, it seemed the perfect opportunity to demonstrate how well
Microsoft will protect its buddy Novell from these sorts of
lawsuits. If we hear an announcement from either company in the
next few weeks about Microsoft pledging its legal support to
Novell, then I will be convinced this lawsuit was all a set-up to
make Novell’s Linux look good versus Red Hat’s Linux.

Finally, a weaker suit plays into the first two points above. If
Microsoft-through-proxy can damage Red Hat/strengthen Novell
enough, having a weaker suit will make it much more simpler to pull
the plug when the time comes.

I realize I may have argued myself out of my original point, but
what I have tried to do here is highlight why I am honestly not
sure which side to come down on. Occam’s Razor pushes me over to
the simpler this-is-just-a-patent-troll explanation. Our collective
experience with Microsoft tends to push me towards the more
complicated conspiracy theory.

Who the real players in this game are is a question that will
take some time to be answered. My mind is not made up.

For now.