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Proving such an occurrence is tricky. The 2-year-old OSRM study cited by Ballmer found that not a single case of potential patent infringement around the Linux kernel had been validated by a court judgment. The study said on average only half of all patent infringement accusations are found to be valid.
As part of the deal between Microsoft and Novell, the pair is making payments to each other not to assert patent claims. Novell is paying $40 million to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations, and Microsoft is paying Novell $108 million for a similar agreement that says Novell won’t sue Microsoft users.
Experts have speculated the Microsoft-Novell deal was, in part, a swipe at Linux leader Red Hat and that Ballmer’s recent comments over intellectual property were in that vein.
“I guess that could be the rationale, but is Red Hat that much of threat to stoop to this level?” said Ovum Summit’s Davis.
Read more about infrastructure management in Network World's Infrastructure Management section.