So, the shape of the Great Battle begins to emerge. As reported [1] by Fortune magazine, Microsoft's general counsel, Brad Smith, reckons free software infringes on no less than 235 of the company's patents:

He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

Although Microsoft has not declared which of its patents free software supposedly infringes, you can bet a fair number will be on utterly trivial and obvious things – remember that a patent has been granted for the progress bar [2] – that are used by practically every software program. Since they are so ubiquitous and trivial, the question then becomes why they were granted in the first place: patents by definition are supposed to be non-obvious as well as possessing novelty and utility. In other words, Microsoft's threat of using software patents to attack open source is part of a far larger problem: the granting of software patents at all.

What is remarkable is that initially [3] there was near-universal agreement that software could not be patented, since it was on a par with mathematics or the laws of nature. But gradually, that view was weakened by a series of court decisions that started to blur the distinction between software and devices that used software. Even in Europe, where software patents “as such
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