The first Linux patent suit brought is being creatively connected back to Microsoft through two employees that Acacia Technologies Group has hired from Microsoft. What makes it unlikely that Microsoft is behind this is that the targets of the action are both Red Hat and Novell.
Microsoft has zero interest in taking Novell to court right now and it is using the argument of indemnification to encourage others to create similar agreements. If the indemnification doesn't work -- in other words, if you are going to get sued anyway -- what's the point in doing an agreement with Microsoft?
The action is being brought by IP Innovation and Technology Licensing Corp., a subsidiary of Acacia Technologies Group, which specializes in enforcing intellectual property. Novell is evidently a client of Acacia but there is no known connection, other than the two recent Microsoft hires, to Microsoft. (Typically you don't take a client to court.)
Let's first explore the conspiracy theory that the open source folks would like to believe; a second, more-likely scenario; and what I think is actually the case.
Building a Conspiracy Theory
Just because it doesn't appear to make sense for someone to do something doesn't mean they wouldn't actually do it. Let's now assume Microsoft was behind this. What would its goal be in going after both firms? A recent post by Mary Jo Foley at ZDNet got me thinking of this scenario.
If the indemnification holds, Microsoft would now, as an apparent third party, come to Novell's defense and, because Microsoft was on both sides, easily win on Novell's behalf. Meanwhile, Red Hat would run up massive legal fees and be pounded by a much more hostile and sustaining action. Win or lose, the lesson would be clear: Licensing with Microsoft has solid benefits that can, after this is over, be more easily demonstrated.
It would be a brilliant strategy if Microsoft could execute it, but Microsoft leaks information like a sieve. It would undoubtedly get caught and the end result would be incredibly painful. In short, I view it as virtually impossible that such a strategy could get approval and the sequence of known events doesn't map to this strategy at all. The first known action on this IP was against Apple, not any known open source company (IBM appears to have protection).
Next Page: A Better Conspiracy
Building a Better Conspiracy Theory
Here is what may have happened. You have to think that Microsoft has been working on this problem for years now, but since its strategy is to avoid litigation and focus on the business side of diplomacy (I can think of at least one government that should have taken this path), executing on any patent issues has not been approved.
Now, central to any of these plans would be General Manager of Intellectual Property Brad Brunell. Let's say he was convinced that one of the painstakingly and expensively created but unused strategies could be very successful. His managers disagreed. Might he not go out and see if he could go to another company, convince it of the success of this plan, and then leave Microsoft to execute it?
Even if Microsoft wanted to, it couldn't stop him because it would mean admitting the company had created this plan and would likely have folks asking about others it might have considered.
Microsoft often gets burned for things it has discussed but never actually done. Novell might not have a problem with this because it could now demonstrate that there was a good reason to license with Microsoft and take a huge competitive step against Red Hat without looking aggressive itself. And since this probably wasn't Novell's idea in the first place, it is effectively an interested beneficiary, not part of some secret plot.
If the plan is a good one, Brunell not only makes a lot of money (you would expect him to be in for more than salary), but he can show his manager(s) that he was right all along. There is nothing more rewarding than making someone in your old upline look stupid after you have left. Trust me, though, doing this while you are still at a company (and I've done that too), isn't nearly as rewarding (the word "suicidal" comes to mind).
But the sequence of events doesn't actually support this. You would expect the strategy to come after the hire, and it is clear that Acacia had both acquired IP Innovation and gone after at least one other company (Apple) long before hiring either Microsoft employee. The hiring still appears part of an existing strategy, not the source of a new one. What makes this more likely than the first is that Brunell was on the board of Content Guard and there could be a connection between it and Acacia (given that they seem to be in the same space). Itt is still a big reach, though.
Wrapping Up: The More Likely Cause
Given that this kind of litigation is Acacia's business, the very high likelihood it acquired IP Innovation with this in mind, and it has already been going after folks successfully like Apple (which settled with the company in June), it is actually more likely that it developed its own strategy and decided it didn't want a run-in with Microsoft. It hired Brad Brunell and Jonathan Taub (former director of strategic alliances) to both ensure it didn't bump heads with that company and so it could go down a similar licensing path to the one Microsoft is currently on with open source companies. If you are going to go after open source companies, where would you look for the strongest skills? (hint: Probably not SCO if you wanted to be successful.)
If there was a similar strategy developed in Microsoft, it also benefits from that thinking through its hires; this is all consistent with the facts as we currently know them. There would be no reason even to loop Microsoft in unless Microsoft is also a client (which we don't know but would expect it would want to advertise) or to ensure Microsoft didn't aggressively come to Novell's defense.
While conspiracies are fun to talk about, the problem is they seldom work because core to a conspiracy is secrecy and, invariably, someone always talks.
In the end, I think this last is what is happening. Will Microsoft and Novell benefit? I expect that will be the case, but at the core of this is Acacia, not Microsoft, and it is that company that will be the source of any related strategy.