It is in that same vein that Microsoft has worked out licenses with customers and the agreement last year with Novell.
Richard Stallman once referred to a study - that was done by Open Source Risk Management - that the Linux kernel infringed more than the 235 patents cited in the Fortune article. So, patents on Linux is not new. What is new is a statement that Microsoft has identified 235 patents in its patent portfolio that cover free and open source software.
The statements by Ballmer and Smith are not a call to a war on patents. Stallman and Moglen seem to be the ones calling for that. Rather, Ballmer and Smith talk about licensing and not patent infringement actions. I suppose that that is one of the reasons for not naming specific patents and specific products covered by them - to avoid being dragged into court where they don't want to be on declaratory judgment actions.
It is true that recent Supreme Court decisions have pared back patentability of inventions and infringement actions - but I think that is an evolutionary and not radical alteration. There is also the peer to patent project of NYU. Really, all of this is good if it means weeding out good patents from bad. But none of this goes to the true desire of the FSF - to eliminate patent protection for software. In GPLv3, FSF makes their disdain for patents on computer software clear. But rather than taking the issue to the only party that can do something about it - the US Congress - FSF is more inclined to take it to the streets and fan the flames to ignite the "tinderbox" that Moglen referred to in the article. They would apparently welcome it. But it is cooperation and not conflagration that Microsoft is interested in.
No, we cannot all be friends - but we need not put our friends, customers, and software users in a cross fire, which is precisely what the GPLv3 does.
So, I am not worried about proprietary software or patents. I am not worried about how many patents Richard Stallman or Brad Smith thinks cover Linux. I am worried about the combatants on the anti-patent side of the aisle that do not take the issue on directly but who actively seek confrontation instead.