In an op-ed piece published by BusinessWeek today, Linux Foundation Executive Director Jim Zemlin stated his organization will be ready to fund the legal efforts of anyone who produces Linux software who's threatened with - or sued on account of - patent infringement. If necessary, Zemlin writes, the foundation will use its own patent portfolio to mount countersuits.

"Touch one member of the Linux community, and you will have to deal with all of us," reads Zemlin's article. "Microsoft is not the only - perhaps not even the largest - owner of patents in this area. Individual members of the Linux ecosystem have significant patent portfolios. Industry groups, such as the Open Innovation Network and our own legal programs at the Linux Foundation, aggregate our membership's patents into an arsenal with which to deter predatory patent attacks. With our members' backing, the Linux Foundation also has created a legal fund to defend developers and users of open-source software against malicious attack. We don't expect to but, if needed, we will use this fund to defend Linux."

Zemlin's position raises the issue of whether a possible affirmative defense using patents for technologies that happen to be used in Linux, would violate the spirit, if not the letter, of the General Public License under which Linux is distributed. The preamble for the current version specifically refers to the dangers of patents in an open source environment: "Any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."

The meaning here is, any time someone obtains a license to use patented intellectual property, it's a concession that it's property belonging to someone else, not the general public. The implication from that meaning is that the purpose of obtaining patents is to establish a foundation for issuing licenses.

But language currently being considered for GPL version 3, for that same paragraph, may be more conciliatory toward individuals such as those to whom Zemlin refers, who might want to obtain a patent simply as a defensive mechanism. "Every program is threatened constantly by software patents," reads the current draft, the word "free" having been conspicuously removed from that sentence. "States should not allow patents to restrict development and use of software on general-purpose computers, but in places where they do, we wish to avoid the special danger that patents applied to a free program could make it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render the program non-free."

In an attempt to mitigate some of the damage Ballmer's comments caused, members of Microsoft's open source laboratory blogged last week for Port 25 that Microsoft promises never to engage in "frivolous litigation" or spreading fear. Borrowing a metaphor from former President Clinton, Microsoft now refers to the agreement it wants open source authors to make with the company as its "IP bridge." "Our IP bridge makes lawsuits unnecessary," Microsoft's Bill Hilf and Sam Ramji wrote.

That didn't stop the Linux Foundation's Zemlin from issuing a challenge to Microsoft to join it in what Zemlin characterizes as its own singular effort to instigate patent reform. "We ask Microsoft to stop engaging in FUD campaigns that only serve to undermine confidence in the U.S. intellectual-property system," he writes for BusinessWeek. "Instead, please work with us to make the patent system tighter, more reasonable, and efficient for everyone in the software business."