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When did the "Linux community" get so vitriolic and spiteful?

There is no vitriol in the parent's post. The term 'enemy' is only as emotionally charged as the listener wishes it to be. As it's easier to hate an 'enemy' than to understand and accept an opposing point of view, this is probably not the best choice of words in a constructive dialogue.

This isn't some ideological war that is being fought, and shame on you for trying to make it into one.

The parent is simply making an observation. Free Software is an ideology just as capitalism is an ideology. While not mutually exclusive (hence efforts being made to monetize Free Software both on the part of "Open Source" startups and established commercial vendors), these two ideologies do conflict in several areas.

Microsoft is [an] enemy?

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While an organization as large and diverse as Microsoft will never be entirely focused on activities that impede or overtly threaten the F/OSS community, it has interests that are not and may never be compatible with those of the Free Software community. For that reason, MSFT is directly and indirectly engaged in activities that hurt and threaten the F/OSS community, not out of malice or even by choice, but in simply fulfilling obligations to its shareholders. It's just business :).

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Patents haven't become high viz enough to be a campaign issue, but I'd love to see an advisory panel of both industry and academic representatives formed to create a better system, and then have Congress vote on that.

One of the important lessons we learned from the european fight over software patents is that there are companies and patent lawyers that are willing to "invest" heavily in lobbying for extending patentable subject matter.

If this issue is decided by Congress, I am sure that the many lobbyists that would be deployed to influence your politicians would mean a patent law amendment saying that even more obvious "ideas" than right now could be patented.

I have a lot more confidence that the US Supreme Court can strike a more reasonable balance between protecting new ideas and protecting the possibility of new innovation. Just like in Europe I think that the current case law in the US has evolved to a point where it is getting hard to find basis for the current case law in the law texts without a lot of word play, and I think this is the problem that the Supreme Court wants to look at.

Personally I think that a better balance on the question of obviousness could be found by thinking about if a person skilled in the art knowing the current state of art at the time of the patent application and the problem at hand, but not the patented solution could device the patented solution in a few hours or days.

...and why patents are so unjustifiably incompatible with software, see e.g. this paper, as well as a free book on the "mechanics" of the patent debates.

The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence

That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.

I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).

If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.

Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.

The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence

That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.

I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).

If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.

Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.

The FSF Europe's Ciaran O'Riordan wrote in his article about the role of the European Parliament:
in the EPLA they have no influence

That is not necessarily correct. The first procedural question to be clarified concerning the EPLA is whether any of the 25 (soon to be 27) member states of the European Union are allowed to ratify it on their own. The European Commission's legal services say that the EPLA can only be concluded by EU member states as a so-called mixed agreement, which means that the EU (or in legal terms, the European Community, but to most people that's the same anyway) would have to become a virtual contracting state to the EPLA.

I have already predicted in my blog that the European Commission is going to ask the European Court of Justice (ECJ) for an opinion on this question. They're not going to take their chances and create a court that might later be illegal from an EU perspective (with the effect that all of its rulings would be invalidated overnight).

If the ECJ were to support the opinion of the European Commission's legal services, the immediate follow-on question from our perspective is whether the European Parliament, which is the most important bastion of balanced patent policy in Europe, is going to have a decisive role or whether it's just going to be consulted (in which case its opinion could be ignored). I already discussed this question with specialists of the European Commission more than five months ago, and they said that the EPLA would require modifications to certain parts of the existing EU law (the so-called "acquis communautaire") that are subject to the codecision procedure. The codecision procedure is the one under which the parliament has more influence in the EU than under any other procedure. My book No Lobbyists As Such - The War over Software Patents in the European Union discusses in detail the way the codecision procedure works: it's the procedural framework under which the software patent directive got rejected.

Therefore, it's little surprise that certain die-hard proponents of the EPLA take the position that the EPLA can be ratified by any European country, including any member state of the EU, without EU involvement, while we (the anti-software patent camp) very much hope that the European Parliament is going to be needed.

Just days before the European Commission's next hearing on patent policy that is still being hatched despite the last directive's overwhelming defeat in Parliament, several recent publications discuss developments of the law on Tux' home continent, and successful steps to avert software patents: The huge new book on "The War over Software Patents in the European Union" by the founder of NoSoftwarePatents has just been released for download. If you prefer a few hundred pages less, see the latest issue of the International Journal of Law and Information Technology for a scholarly article.

Software patents do exist in Europe. Tens of thousands of them, in fact. They have been, and continue to be, granted by the European Patent Office (EPO) as well as national patent offices (such as the UK Patent Office, for an example).

However, Microsoft, Oracle, SAP and the other usual suspects are unhappy about the fact that most of those European software patents are barely worth the paper their documents are printed on. All patent litigation in Europe goes to national courts. Even if there is an infringement of the same patent by the same infringer in multiple countries, the patent holder has to sue country by country. The national courts look at the applicable national law. So, what does that applicable law say as of now?

All countries that are member states of the European Patent Organization (the international organization that runs the EPO) have signed and ratified the European Patent Convention (EPC), a treaty that was worded in the 1970s. Its article 52 says that "computer programs" (and various other things) are not patentable inventions. But it also says that this exclusion only relates to the excluded subject-matter "as such".

The interpretation of "as such" varies greatly. The EPO believes that a computer program is only a "computer program as such" in the form of source code or object code, on which no one (not even in the US) would want a patent because its scope would be too narrow (for protecting code, copyright does the job anyway). But any concept that can be implemented by way of a computer program, such as a context menu, is considered a technical invention by the EPO.

It's like saying: Once the program actually runs on a computer, that whole computer along with the program running on it is no longer a "computer program as such" and the exclusion doesn't apply. That's the EPO position. It's also the way many national patent offices justify the grant of software patents. However, national courts with their independent judges often come to a different conclusion and throw those software patents out right at the beginning of an infringement litigation.

At this juncture, the real threat is not that the EU would introduce an EU community patent and change the legal framework. The clear and present danger is that the European Patent Litigation Agreement (EPLA) might be ratified. Microsoft, SAP and their usual allies (including the EPO itself) are pushing for this initiative now. That's the one to watch out for.

Is that why Ballmer has been reported to have said that Microsoft will "sue Linux?"

Take a look over here: http://www.no-lobbyists-as-such.com/florian-muelle r-blog/ballmer-linux/