This is a good article;

http://www.itwire.com.au/content/view/12212/53/

"Even if hypothetically there are patent infringements in the Linux kernel,
then the open source community would do the right thing and remove the
offending code and, because open source development moves so rapidly, that
means Linux would no longer be infringing before it even got to court. So
even if Microsoft did have a case, by the time it got to court the case
would be gone and whatever damages that they were able to ask for would be
very minimal."

~James 
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