Microsoft CEO Steve Ballmer has said that the open source movement needs to “play by the same rules” as the rest of the business and claims “what’s fair is fair.” Which is pretty rich given the high profile cases involving dodgy business practice and Microsoft during the last few years. Still, a leading Microsoft lawyer, Brad Smith, has nonetheless accused the Linux of a serious swathe of patent violations, some 235 in total in fact. As part of an interview with Fortune magazine, Smith cites some 42 violations of Microsoft patents involving the Linux kernel, 45 more by OpenOffice.org, 65 to do with the UI and other Linux design elements, and throws in a nonchalant 83 bonus violations involving other open source applications.

If this is the case, then why has Microsoft not filed against those concerned in order to protect its IP and add a few million in damages to its bottom line? After all, the IT business is not exactly know as being shy when it comes to filing for patent infringement, and Microsoft isn’t what one could call backwards in coming forwards regarding litigation to protect itself.

Could it have something to do with taking a big stick and little carrot approach to lucrative commercial deals, such as we have seen recently with the Novell ‘we won’t sue you if you jump into bed with us’ pact? Or perhaps it is more a case of running scared from the big stick that the Open Invention Network (OIN), with members such as IBM, Philips and Sony at the helm, has been carving which might just be long enough to poke Microsoft in the eye and heavy enough to do some serious damage in the patent litigation department?

There is no doubting that the OIN has something of an intellectual property armory which could certainly be brought into play as part of an offense is the best defense strategy should Microsoft get heavy. And Windows looks like being the soft flesh poking through the Microsoft armor.

The OIN approach does look like being the way forward when it comes to dancing around the minefield that is open source patent handling. Rather than often complicated individual agreements or limited rights assignments and perpetual licenses, the OIN requires those that license its patents (for free of course) to do so without asserting any patent claims against anyone involved in the Linux environment. Meanwhile, the Free Software Foundation is working on a new GPL draft which will include clauses that prohibit partnerships and pacts of the Microsoft/Novell ilk.

No wonder Microsoft is getting hot under the collar and rolling out the big guns to fire the heavy patent infringement allegation shells. But, let’s be frank here, shouting you sank my battleship to anyone who will listen is not going to scare anyone, even if it is Microsoft doing the shouting. Open source software users are not the type of people who will back down and put their hands into pockets to pay a Microsoft tax, after all. This is just Microsoft FUD, and I doubt we will see it get to court because if truth be told it is Microsoft which is running scared when it comes to open source and not the other way around.