You are trying too hard ~ sometimes the lines blur. In this case the “operating instructions that make a machine operate” could differ, but it’s the operation of the machine that makes the difference ~ but that wasn’t the point I was making anyway. Whatever the standards of evidence might be in a court of law, I suggested that the items Microsoft is complaining about might well be code for code IDENTICAL ~ and that would satisfy all of us that there could have been some hanky-panky (although probably not a court of law if it had a different standard).
OK. While I agree that there *may* possibly be identical code, the next question would be "in which direction was the copying done?" The SCO case proved that while SCO claimed infringement, and showed a little code, it was proved that the SCO code was newer than the Linux code--hence it was *SCO* that was copying from the GPL code.
With patents, it doesn't really matter who wrote it first--only who owns the patent. So the next step would be to determine if the patent is valid--and there are many who believe that a lot of MS' patents are not valid.
So any case MS would bring will be an interesting case study in all this and the finer points of patent law.
This whole thing was a tad more scary before SCO tried this play book. If SCO *UNIX* cant produce anything in Linux that is their IP I doubt MS has nearly as much as they are advertising. Like SCO they are keeping the patents being infringed upon secret because
1) Upon review they would get dumped
2) This is more a tactic to get cross licensing and nothing more
Frankly IMHO until they fix the mess at the patent office all of these cases are joke because such a huge number of patents are not worth the paper they wre granted on.