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A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Tuesday, May 15 2007 @ 10:15 AM EDT

Did Microsoft detail what patents it thinks Linux infringes when it was negotiating the deal with Novell or not? The parties are telling two different stories, and furthermore, Microsoft has now told two different stories, making a total of three stories. First it said it didn't, but now it seems to be saying it did. Let me show you what I noticed.

Novell's story:

Novell yesterday issued a statement on the Fortune article, in which it reiterates that as far as Novell is concerned, it does not believe that there are any Microsoft patents that Linux infringes:

There’s an article out in Fortune Magazine talking about Microsoft, intellectual property and open source. Because of our interoperability agreement with Microsoft, which includes a patent element, Novell is featured in the story. We’ve received a number of inquiries about the story, in which Microsoft lays out the specific number of patents it claims are violated in Linux and other open source projects. While providing numbers is new, the claims that violations exists are not new. In response to similar Microsoft claims back in November, we put out an open letter from our CEO, Ron Hovsepian, that states our position on this issue. That position hasn’t changed.

From that open letter…”We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.”

As we’ve said from the beginning of this agreement, our focus has been on interoperability and making it easier for customers who have Linux and Windows to make those platforms work together. The patent agreement simply takes the patent issue off the table for those customers who are concerned about it.

So Novell's story is that it was just a sop to PHBs who don't know any better and like to be soothed.

Microsoft's 1st Story:

In fact, in February, Microsoft told Matthew Aslett of CBROnline, Aslett writes, that it had not detailed patents to Novell prior to the deal:

Microsoft executives had previously told Computer Business Review that the company had not carried out a detailed patent assessment before reaching its patent covenant agreement with Novell.

"We did not do a drains-up inventory," said Microsoft's UK server director, Bruce Lynn in February, adding that the deal "was almost like an insurance policy. There could be stuff that Microsoft is inadvertently using in Linux and Linux is inadvertently using in Windows.".

So, in February, Microsoft said it not only hadn't laid them out on the table before Novell, it hadn't even carefully looked itself.

Microsoft's 2nd Story:

Now, however, Microsoft sings a different tune and says it did share details about specific patents with Novell:

Horacio Gutierrez, Microsoft vice president of intellectual property and licensing, said that although Microsoft won't discuss specific patents publicly, it has discussed them in private with companies like Novell Inc. that it struck deals with to exchange patent royalties for indemnification against litigation.

2 Questions This Raises:

This raises a couple of questions, the most obvious being that since somebody isn't being truthful with us, we have to ask if we wish to do business with folks whose stories change if they perceive a benefit to themselves. That really is the value-add of FOSS, you know. Nobody lies to you. The software has always come with the ethics attached.

But deeper, let's take Microsoft's story, the current one, as true. After all, we should expect to be able to rely on a VP of intellectual property and licensing to know. He says Microsoft told Novell which patents are infringing. So the real question is this: is this in fact a patent cross license on specific patents after all? If it is, are we looking at a GPLv2 violation on its face?

2 Questions for Novell:

*Now* do you get it? We tried to warn you about partnering with Microsoft.

Second, if you think there are no Microsoft patents infringed by Linux, do you see some hypocrisy in trying to benefit in the marketplace from Microsoft's FUD? They claim that there are such infringements, and they are selling the patent peace agreement to PHBs as offering actual needed protection. Think about truth in marketing. Think about the ethics. You are losing out on the value add of FOSS, in my view, and sullying its good reputation.

You and your buddy -- and may I say that with friends like Microsoft, who needs enemies? -- need to get together and get your stories straight, at a minimum, and then let us know which story is true. And you need to get out of this god-forsaken patent agreement or risk going down with the ship. It's a market differentiator all right, but not in a good way. The world has spoken. It despises what Microsoft is now claiming and threatening. Threatening to sue Linux is like telling Dorothy you will kill her little dog Toto. And you are, sadly, tied at the waist to the wicked witch. When she melts, she will destroy you too.

Please come back to the peaceful FOSS savannah and drink water with us here once again. Nobody here melts when someone tosses a bucket of water on us. Truth is our friend, and our market differentiator.


A Serious Inconsistency Emerges in the Microsoft-Novell Stories | 373 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 10:26 AM EDT
Companies like Novell != Novell

Looks like the left a little wiggle room in their story.

[ Reply to This | # ]

Corrections Here
Authored by: feldegast on Tuesday, May 15 2007 @ 10:27 AM EDT
So they can be fixed

My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Long spoons again
Authored by: jmc on Tuesday, May 15 2007 @ 10:31 AM EDT

As has been observed before:

... he must have a long spoon that must eat with the devil

William Shakespeare: The Comedy of Errors Act IV Scene 3.

[ Reply to This | # ]

[OT] The Off Topic thread
Authored by: Aladdin Sane on Tuesday, May 15 2007 @ 10:34 AM EDT
Please post off topic comments beneath this one.


"Fat operating systems spend most of their energy supporting their own fat."
--Nicholas Negroponte, MIT Media Lab,, Apr 2006

[ Reply to This | # ]

Two different stories?
Authored by: Anonymous on Tuesday, May 15 2007 @ 10:38 AM EDT
Novell says that Microsoft always alleged there were violations, but that Novell
has never accepted those claims and still doesn't.

Microsoft says there are violations, and that they have discussed specific
patents with Novell.

These are consistent statements. MS isn't claiming Novell agreed to the
allegations. They aren't even claiming that specific patents were discussed
before the deal was made, only that there have been discussions.

[ Reply to This | # ]

"...Novell did not agree or admit that Linux or any other Novell offering violates Microsoft..."
Authored by: Aladdin Sane on Tuesday, May 15 2007 @ 10:39 AM EDT
"...Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents." --Ron H., Novell

Ron, yes you did.

"Fat operating systems spend most of their energy supporting their own fat."
--Nicholas Negroponte, MIT Media Lab,, Apr 2006

[ Reply to This | # ]

An historical moment is occuring right now
Authored by: PolR on Tuesday, May 15 2007 @ 10:51 AM EDT
What a feeling this is. Am I the only one under the impression we are witnessing a major turning point? The emperor is losing his clothes at last.

Noting the FUD is for all practical purposes useless, Darigaaz made an interesting post.

That confirms it for me. Microsoft has three options now - a spectacular flameout a la SCO, a steady decline into irrelevance, or a complete corporate reinvention.
Upon this I observed that option 2 and 3 are unlikely to suit Microsoft current management. Therefore option 1 it will be and this means an actual lawsuit. Money is not the objective of Microsoft, they will sue for the purpose of causing disruption.

This is where comes the magnificient risk analysis from Webster. It deserves to be read in full, buthere is an operative part.

Litigation is a very risky step for the Monopoly. The DoJ may perk up in an effort to show that they can function with Gonzalez sans deputies. They have a problem showing actual damages since open source software is free. One pays basically for support when corporations buy Red Hat. Without damages, an injunction is less likely. They are more likely to face appeals and lose patents every step of the way. The patentability of software will also get a good review. There are some intelligent receptive justices amongst the Supremes. The Linusians would probably form a class action defense. Imagine IBM and Moglen involved. The patent Office and system is so disfunctional. The Monopoly has argued against it itself since it is sued so often. Their own words wil be turned against them. Plus if they start a patent war on Linux, IBM could try to join their part of it into the SCO trial. SCO and the Monopoly telling Judge Wells she doesn't understand her own orders.
Therefore option 1 doesn't look good either. It will just accelerate the defeat. The question is now will Microsoft try something rash? Or will they just milk the monopoly profits while they last doing what they can to slow down their decline?

[ Reply to This | # ]

Watch Your Back PJ
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:02 AM EDT
Microsoft is going try everything possible to shutdown Groklaw.

SCO/Caldera had hoped to win their shakedown efforts by controlling the
information flow.
But because of Groklaw, SCO/Caldera could not control the information flow. And
SCO/Caldera is now losing.

This is why SCO/Caldera-Microsoft tried to depose you and to eventually put you
under some gag restriction.

[ Reply to This | # ]

Maybe it's time
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:06 AM EDT
to leverage the 'many eyes' on to MS patent portfolio and start collecting
evidence that will debunk their patents and then make it available to MS's

[ Reply to This | # ]

Two questions for Novell
Authored by: wvhillbilly on Tuesday, May 15 2007 @ 11:07 AM EDT
For Ron H:
You are losing out on the value add of FOSS, in my view, and sullying its good reputation.
And I might add, you've lost most, if not all, of your credibility with the FOSS community too.

What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:15 AM EDT
What exactly is a PHB, anyways? I've been looking around and I can't find it
defined anywhere.

[ Reply to This | # ]

Read it carefully... he did not say they told Novell
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:15 AM EDT
The quote says:
discussed them in private with companies like Novell Inc. that it struck deals with

This doesn't say that they told Novell, it says that they told comapanies "like Novell Inc. that it struck deals with"

Maybe they told Dell, or Fuji-Xerox?

[ Reply to This | # ]

Companies LIKE Novell
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:17 AM EDT
They did not say NOVELL, but LIKE Novell.

Read carefully ....

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:26 AM EDT
Meh...I doubt MS cares about any distro other then RHEL and SLES or any
companies besides RH, Novell, IBM and HP.

I would suspect that IBM and HP will play ball leaving RH the only major
enterprise player squeezed. I'm guessing they are hoping that between this
nonsense (which will be resolved with a simple patent cross license between
the major players) and GPL v3 that the corporate linuxes will fork on GPL v2.

Will RH cave? Who knows. OIN isn't the same as a defensive patent portfolio
from it's description in articles and RH's own portfolio is tiny.

But divorcing Linux v3 from its corporate sponsors would put RMS in the
same boat as Theo...just a much larger one with more folks on board. For MS
that's a huge win.


[ Reply to This | # ]

Steady on!
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:27 AM EDT
"That really is the value-add of FOSS, you know. Nobody lies to you."

That is so sweeping a statement that it has to be inaccurate. Some on the FOSS
side are liars.

[ Reply to This | # ]

Timing is Everything
Authored by: tredman on Tuesday, May 15 2007 @ 11:33 AM EDT
I was pondering this last night, and have to admit that this is terribly bad
timing for Microsoft.

We could potentially be on the eve of multiple summary judgment findings in SCO
v IBM. Worst case scenario involves Judge Kimball not only finding for IBM on
several counts, but also publicly chastising SCO for not being open and up front
about their boasting claims of massive infringement. Sanctions may even be
involved, against the company and/or its litigators.

If this happens, companies around the world who make a living using or
developing open source software will become emboldened and stand up to the great
monopoly. They may even band together as a legal class and demand that
Microsoft "put up or shut up" on their patent claims, holding a
Kimball judgment in their hands as legal precedence.

Microsoft will be forced in the end to either stand up to accusations of
barratry, tortious interfererence and anti-trust bullying, or to lay their
patents on the table for all to see. Either option doesn't play too well for

I was also just thinking of their claim that OpenOffice violates a certain
number of their patents. How curious that this statement should come out in the
middle of the process to get OfficeXML ratified as an ISO standard.

Once again, MS puts itself into what could be perceived as a no-win situation.
If they rattle the patent sabre louder, they endanger their document format in
its quest to be considered an "open" standard. If they don't,
OpenOffice and the ODF standard picks up that much more steam and momentum, and
OfficeXML risks falling by the wayside, not being approved as an ISO standard.

Indeed, very intriguing times we live in.

"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

partnering with Microsoft
Authored by: rsmith on Tuesday, May 15 2007 @ 11:34 AM EDT
Remember that a Microsoft partner is just a victim they haven't gotten around to
dealing with yet.

Intellectual Property is an oxymoron.

[ Reply to This | # ]

"Business Ethics"—an oxymoron
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:43 AM EDT
PJ, you don't get it--and neither do I for that matter. I'm not a MS-hater, I
simply do not trust them enough to enter into any level of partnership with
them. Since using an OS or a word-processor is a partnership: their software
holds my data, I don't use their products for anything I care about.

But business people are immersed in deals and partnerships with people they
don't trust. If a deal looks to gain an extra buck in the near-term, and they
can afford to risk the ante, they're in, even knowing that the other player has
a reputation as a cheat. I guarantee you that Novell knows exactly how far they
can trust MS.

It's just business. I don't get it.

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:43 AM EDT
"There could be stuff that Microsoft is inadvertently using in Linux and
Linux is inadvertently using in Windows.". Mmmmmm! Does this mean that MS
is using GPL code in XP/Vista?? Have they now been caught with their hand in
the cookie jar?? Maybe they are the ones in violation and need the protection of
Novell??? Will we ever know and is there even a way to know not having access
to their code???

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: PolR on Tuesday, May 15 2007 @ 11:47 AM EDT
Here is an o pinion from Paul McDougall at Information Week.

They basically say Microsoft must sue.

What choice does Microsoft have? It's basically lost the Internet to Google. If Linux and other free software continues its march toward mainstream (don't underestimate the significance of Dell's decision to ship Ubuntu Linux for the desktop) what's left for the company?

Only the courtroom.

Perhaps that from Microsoft perspective, the Novell and other patent deals are preliminaries for lawsuits? They want to reduce the number of potential FOSS defenders before they unleash the lawyers.

A business plan Slashdot style:

  1. Sign companies into patent deals for five years
  2. Sue non signatories out of existence
  3. Upon renewing the patent deals after five years, alter the terms under threats of more lawsuits
  4. There is no ???? step. If this stage is reached, Microsoft has succeeded to impose a proprietary patent tax on Linux.
  5. Profit
A question for Novell, how do you plan to address step 3? Proceed to step 4 and pay the Microsoft tax?

We can see why the GPL3 matters. This is how we can stop this plan.

[ Reply to This | # ]

Novell's side
Authored by: Anonymous on Tuesday, May 15 2007 @ 12:01 PM EDT
Novell has no choice in what they say. Under the "Liberty or Death"
clause of the GPL, they cannot distribute GPLed software if there is any reason
why it cannot be freely distributed thereafter. Specifically, if Microsoft has
any patents that would apply to the Linux kernel, nobody can distribute the
Linux kernel. As long as Novell maintains that there is no patent encumbrance,
they can consistently distribute Linux. If they admit to patent encumbrance,
they are admitting a violation of the GPL.

Microsoft, of course, does as it pleases. I've speculated before that this may
be a sleazy division of labor: Novell maintains no patent problems, to keep
distributing Linux, and Microsoft maintains there are, to make Novell's Linux
more attractive. After all, Novell's patent deal with Microsoft is worthless if
it's as meaningless as Novell needs to claim. (If that's a confusing sentence,
it's because it's my best attempt at describing a confusing situation.)

[ Reply to This | # ]

No specific examples == no case
Authored by: TiddlyPom on Tuesday, May 15 2007 @ 12:05 PM EDT
Until Microsoft comes up with actual examples as underlined in US law (and note
that that software patents do not apply outside the US at the moment) then they
simply have no case and could potentially be prosecuted for potential damage to
business for millions of people who now use or depend on Linux.

As has been stated several times, I believe this is a real turning point in the
software industry. Microsoft can see a nightmare scenario of large numbers of
people across the world abandoning Windows (especially as Vista is not exactly
the best product they have ever come up with) and are terrified of the

The most damaging thing of all is that ordinary computer users (not those of us
in the IT industry) are starting to realise that Microsoft are becoming
*irrelevent* (i.e. you don't *need* Windows or indeed any Microsoft products
anymore if you have a computer). Is it any wonder that they (like anyone under
threat) are turning nasty.

The second problem that Microsoft have is that a large percentage of computer
users do not *trust* them anymore. Would you?

Once SCO is defeated (which isn't long now I think), Microsoft's position will
be much weaker.

Microsoft need to bring a case to court with the claims out in the open or they
will simply be compared to SCO's baseless sabre rattling and ignored.

Either the claims will turn out to be FUD (which I suspect most of them are) or
we will work around them. If Microsoft really bring on the pressure to stop
Linux vendors shipping products then I'm sure that there are enough patents in
the hands of companies who work with Linux and BSD UNIX to stop Vista/XP being
shipped for a while in the US.

Mr Bullmer, I will *never* buy another Microsoft product as long as I live (and
I have spent most of my career working with Microsoft products so far) and would
gladly donate money to any effort that keeps Linux alive (and I'm sure I'm not
the only one).

You will not win this battle. There are too many people in the world who care
about open source software to see that happen.

"There is no spoon?"
"Then you will see that it is not the spoon that bends, it is only yourself."

[ Reply to This | # ]

Interesting thought with regards Fraud
Authored by: Anonymous on Tuesday, May 15 2007 @ 12:08 PM EDT

The Fortune article contains the following juicy tidbit:

    Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them.
I'm wondering what the possibility of MS knowing - or at least having a reasonable belief - that the validity of their patents are highly questionable.

If MS itself believes they don't have valid patents, would it not constitute fraud for them to try and license said unvalid patents?

Would the refusal to disclose the patents for fear FOSS advocates would start challenging them constitute a potential belief the patents are invalid?

Could the above argument possibly be used to force MS to disclose the patents somehow?

Hmm.... curious.


[ Reply to This | # ]

Boardroom vs Courtroom Play
Authored by: Anonymous on Tuesday, May 15 2007 @ 12:14 PM EDT
Dunno why folks think this is bad timing for MS. This is great timing if their

objective is to fork Linux into v2 and v3 camps.

These manuvers are IMHO not intended for the court room but the board
room. There's a lot of wait and see IMHO among the corporate players and
they do have the resources to fork Linux on v2 vs v3 lines.

V3 is close to soup. There are provisions in there that IMHO make
corporations ambivalent about the transition regardless of non-binding
public statements (like IBM engineering blogs).

If MS comes with a cross license + $$$ deal then staying with V2 (even if it
means forking) where they retain control over their destiny rather than the
FSF would seem like a good deal to corporate GCs in my opinion.


[ Reply to This | # ]

An Idea of Novell's Intentions
Authored by: VivianC on Tuesday, May 15 2007 @ 12:23 PM EDT
This is just a thought and feel free to correct me if needed:

I kinda see the patent agreement as a sweeping promise not to sue over the interoperability that Novell wants to add to SuSE. Active Directory and other structures are patented by MS and interoperability could violate those patents. Rather than name all the patents involved, MS just agreed to all of them. Perhaps Novell didn't see the potential for FUD in the agreement.

Also, Active Directory (AD) has always struck me as a clone of Novell Directory Services (NDS) which was added to Netware 4 back in 1993. Rather than battle between NDS and AD patents (and validity of AD patents when viewing the prior art of NDS), they agreed to the covenant.

I would guess someone should look and compare any NDS patents with any AD patents and functionality and see if there is an overlap.

Full Disclosure: I like Novell and SuSE. I used Netware before Windows had a sever platform. I run SuSE at home and Microsoft at work.

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: iabervon on Tuesday, May 15 2007 @ 12:36 PM EDT
The second Microsoft story doesn't really specify the order of the events.
Everything is perfectly consistent if Microsoft discussed particular patents
with Novell after the deal, and Novell didn't find them convincing. For that
matter, my initial interpretation of Microsoft's second statement was that they
made their big announcement, then refused to tell the general public about
particular patents, but then went to people with whom they have patent deals
(and who would therefore care less about challenging the patents) and told them
where they got the numbers.

[ Reply to This | # ]

PJ's note in News Picks
Authored by: jog on Tuesday, May 15 2007 @ 12:59 PM EDT
On Jonathan Schwarts's blog on
"Free Advice for the Litigeous".
Twice today, I imagined PJ as:
"The Sentinel"
Well, because "Prince George" is the
wrong gender.
Harkening to *old* movies.

[ Reply to This | # ]

Time to buy some MSFT stock
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:11 PM EDT
Microsoft says that Linux and other FOSS software violates 235 of their patents.

From the Eolas vs. Microsoft case we know that just one patent can be worth $521 million.

235 * $521 million = $122435000000. Yup $122 Billion

So this revelation by Steve Ballmer and other Microsoft executives is clearly material to Microsoft's future financial results (the market cap for MSFT is currently less than $300B, so a revenue stream of this size is huge).

So it's time to BUY, BUY, BUY now before Wall Street realizes the huge impact of this news.

And if this all turns out to be FUD and Microsoft turns out not to have 235 defendable patents, or doesn't elect to collect on them, well then you can sue Microsoft for making these forward looking public statements. You just can't lose!

Financial health warning: Nobody who has followed a stock tip from me has ever made money on it, but past performance is no guarantee of future results ... perhaps I'm right this time :-)

[ Reply to This | # ]

What inconsistency?
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:13 PM EDT

it has discussed them in private with companies like Novell Inc. that it...

MS doesn't state that they even talked with Novell. They only state that they talked with companies like Novell ie maybe other companies that have some similarity with Novel (redhat maybe)

And even if they did talk with Novell there is no indications any agreement was reached; the issue of alleged patent infringement may have been an issue discussed after contracts where signed and money was transfered. Novell has publicly rejected MS ideas that clearly weren't disused when that contract was concieved.

The only thing we really have is an agreement between MS and Novell one detail of which is a litigation truce regarding patents infringement claims, and an insinuation by MS that such a truce is a form of admittance or recognition of the patent issues being putting forth.

[ Reply to This | # ]

And not only that....
Authored by: cf on Tuesday, May 15 2007 @ 01:18 PM EDT
In addition to the recent contradictory/misleading statements highlighted in the
article, consider this:

At the time of the deal, observers noted the large balance of dollars going to
Novell in the deal. Representatives from both companies, if I recall correctly,
implied that was due to the strength and number of Novell's patents, esp. in
networking, compared to MS's patent porfolio. I cannot determine value of my
patent porfolio compared to yours without knowing what is in both.

No business will spend hundreds of millions of dollars unless they know what
they are getting for it. If the patent portion of the agreement was really about
patents, both sides knew what the other side had. The public comments from both
sides just do not add up. The patent rider on this deal is just plain fishy. And
it stinks.

I think the patent deal was an excuse for MS to purchase FUD (if people believe
what MS says, this FUD comes at a bargain price), and for Novell to inject some
much needed cash into their business.

Unfortunately for MS, fewer people are inclined to believe them these days.
Unfortunately for Novell, the cost of that cash is proof to the open source
community that they don't grok the community. At all.

In both cases, the deal was driven by what I call QVB's - Quarterly Vision
Bosses. QVB's are the subset of PHB's bosses who are genetically incapable, from
all appearences, of seeing anything beyond the next quarter's financial

[ Reply to This | # ]

A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:30 PM EDT
The only way to make sense of these public utterances is
to examine each word careully to see how many other meanings
it has. All the words are just weasel words spoken to have
some effect. There is no requirement for any of these
statements to be in harmony. Rarely are they outright lies.
That is why it is better to judge based on actions rather
than spoken words or writings, but few people do.
Politicians and PR people know this and that is why the
media is so effective at controlling peoples behaviour.


[ Reply to This | # ]

Novell will also make running royalty payments!
Authored by: RyanEpps on Tuesday, May 15 2007 @ 01:45 PM EDT
"Novell will also make running royalty payments based on a percentage of
its revenues from open source products."

The above is from Novell's FAQ page.

Why is Novell doing this if they don't believe there are problems?


[ Reply to This | # ]

The software has always come with the ethics attached.
Authored by: Anonymous on Tuesday, May 15 2007 @ 01:51 PM EDT
Yes, just ask Hans Reiser.

[ Reply to This | # ]

Ron, that's pretty dumb
Authored by: billyskank on Tuesday, May 15 2007 @ 02:02 PM EDT
Ron Hovsepian is quoted: ”We disagree with the recent statements made by
Microsoft on the topic of Linux and patents. Importantly, our agreement with
Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft
intellectual property. When we entered the patent cooperation agreement with
Microsoft, Novell did not agree or admit that Linux or any other Novell offering
violates Microsoft patents.”

Ron, if you don't believe "Linux" infringes any MS IP, why'd you agree
to the patent cooperation agreement? Remind us, you get paid the big bucks

It's not the software that's free; it's you.

[ Reply to This | # ]

Who can you trust?
Authored by: Anonymous on Tuesday, May 15 2007 @ 02:12 PM EDT
Honestly, I wonder why that question isn't asked more in business, but here we
have some good questions. I found it interesting how Novell seemed surprised by
the community reaction and wanted to cover itself, while Microsoft saw an
immediate opportunity for FUD. After all, we do know that Microsoft had links
to SCO...

Anyhow, my feeling is that Microsoft started this to stir discontent. That
doesn't absolve Novell, but at least Novell can keep their story straight.
Microsoft is starting to change theirs to suit the audience... does that remind
you of anyone else?

So I'm going to have to say that I believe this is a calculated effort by
Microsoft to disrupt things. Maybe some of it was accidental, but they're
certainly capitalizing on the opportunity. Novell? Well, they seem to have
sold out without fully realizing the ramifications. Maybe, hopefully, they can
undo it, but I wonder how. At least the agreement expires in a few years.

As for Microsoft, I can't see them doing anything but blowing more hot air.
Unless SCO pulls out some kind of surprise win (hahahahahaha!), I doubt they'll
want to follow suit, but that doesn't mean they won't make private arrangements
with large companies, sorta like they did with Novell, but kept out of the
public eye. If they were litigating, someone might just use discovery to see if
they'd made any more strange Novell-like deals that might contravene the GPL,
because I have to feel like any further ones will be under NDAs and they'll try
to avoid mentioning Linux on paper (even if they market the license as some kind
of tax to permit the use of Linux).

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A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Tuesday, May 15 2007 @ 03:58 PM EDT
I'm growing rather tired of the Microsoft-Novell "conspiracy" that you
are trying to invent and I'm growing rather tired of Groklaw.

Let's get back to Anna Nicole...could we?

[ Reply to This | # ]

If Microsoft keeps letting Linux use "their" "patents" does that decrease their right to sue?
Authored by: Anonymous on Tuesday, May 15 2007 @ 05:33 PM EDT
So it seems Microsoft is now saying

"We know the patent is in there, but we want to wait until more deep
pockets are using it before we sue."

Is that legal? Or is a valid defense

"Hey Microsoft, if you wanted them not to use them you should have told
them earlier".

[ Reply to This | # ]

To be fair, what COULD they say?
Authored by: Fredric on Tuesday, May 15 2007 @ 05:52 PM EDT
The MS and Novell people have no interest in telling "the truth".

From Novells point of view:
First of IF you know you are guilty of patent infringement the very last thing you would do is to blabber about it in public. It least if you listen to your corporate lawyers. And you would write no memos, emails or even napkins that discuss the issue. And very few people in the organization would know. Maybe not even the CEO.
Note that I do not know if Novell is aware of any patent infringements, I just point out that the response would be the same no matter what.

From MS point of view it is also obvious that they want to portrait Linux situation in the worst possible light. The worst thing that could happen is that the, eventually, loose another case a'la SCO. No big deal. They are probably smart enough to not paint themselves into a corner.

If you look for honesty you are better of somewhere else than in press releases concerning patent issues.

/Fredric Fredricson
-- Heisenberg was maybe here

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And Another Serious Inconsistency from Microsoft
Authored by: brian-from-fl on Tuesday, May 15 2007 @ 07:01 PM EDT

Microsoft's 3rd Story:


"The Free Software movement is dead. Linux doesn't exist in 2007. Even Linus has got a job today." Controversial statements from the head of Microsoft's Linux Labs, Bill Hilf.

So, Microsoft is also claiming that something that doesn't exist is violating patents that it cannot disclose.

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This is a One-Way Street
Authored by: Night Flyer on Tuesday, May 15 2007 @ 07:45 PM EDT
The one-way street is that Microsoft can look inside Linux's open software, but
we cannot look inside Microsoft's closed software to find where it has violated
Linux copyrights/patents.

As well, even though it appears that Microsoft is doing a shotgun approach to
gathering patents, I believe it is very carefully calculating and trying to
manoeuver its way into having bottleneck-critical patents as a strategy. In any
event it is building a diverse portfolio.

Though some of its patents have been revoked (and one can only assume that close
inspection of other patents will find more), there will still be lots left for
it to wield in court.

Further, suppose Microsoft found something not completely protected in Linux and
it applied for and obtained a patent. If SCO with $10 or $20 million can tie up
IBM for years, which of us would want to meet Microsoft in court with its

The intimidation factor? Enormous.

It seems to me that we need to focus a lot of attention on reforming software
patent laws into a copyright type of law. And we need to be sure the DOJ sees
understands that any action by a monopolist abusing its power hurts industry and
creativity in this country.

Veritas Vincit - Truth Conquers

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Here's a specific allegation of a violation: "Analysis ToolPak" may violate US 6,859,816
Authored by: leopardi on Tuesday, May 15 2007 @ 08:28 PM EDT
The Fourier Analysis tool in the Analysis ToolPak of Microsoft Office may violate United States Patent 6,859,816 Makino, et al. February 22, 2005, (assignee: Sony Corporation), filed January 25, 2001. Whether it does or not may come down to the details of the implementation and whether Microsoft has obtained a license from Sony. And yes, US 6,859,816 is apparently a patent for a pure algorithm, with obvious candidates for prior art, (such as FFTW).

[ Reply to This | # ]

Somebody already said it,
Authored by: Anonymous on Tuesday, May 15 2007 @ 11:41 PM EDT
but I'll say it again. I switched to Suse about four years
ago, bought (with real money), the newest version just
before the Novel/MS crap.

I threw the CDs in the trash and switched to Kubuntu.

Novel! Are you listening.

P.S. We have 400 Linux servers at work. No Suse.

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A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: dhcolesj on Tuesday, May 15 2007 @ 11:45 PM EDT
I'm very familiar with Novell's product line. I'm a CNE, and CDE (Certified
Directory Engineer). I no longer work with Novell's stuff. However, there are
things we all need to remember:
1. SUSE is just a part of Novell's product line. Due to their wonderful
marketing no one knows about ID management, GroupWise, eDirectory, or ZENWorks.
All of which are fine products or at least decent.
2. Novell writes client and server software for Windows. Novell's Client32 for
Windows as it was once called, is how you mapped drives to a NetWare/OES Linux
NSS volume.

In OpenSUSE you wont find any of the Novell non-GPLed stuff, (anymore anyway),
however, in OES Linux, or SUSE Linux Enterprise Server you will. The difference
is that OES Linux includes eDirectory and many of the NetWare services for
Linux, and SLES doesn't.

I've spent quit a lot of time bashing Novell's crappy service, software release,
and marketing over the years. So, even though I'm very puzzled by their
Here's my take (if you give Novell the benefit of the doubt):
Novell needed an agreement to continue developing its Windows products
(GroupWise server and client, eDirectory, etc. etc.) so that Windows clients
could mount/map or use services running on SLES or OES Linux. MS needed a cover
for itself in case it was determined that the SCO "source" license was
indeed a farce (which it is). Then turned around and used Novell's need to
twist their arm into a bad patent agreement. Novell being on the short end of
the bargaining leverage bar. The thing most folks miss out on is that
GroupWise, eDirectory, ZENWorks and other products Novell produces run on
NetWare, Windows, Linux, even AIX and other platforms. The product I can most
see them needing the agreement for is Identity Manager which needs to tie in
pretty close to the OS to work.
The problem is Novell's crappy marketing and business decision makers made this
look like a bad deal (at best) and MS made it look worse.

See Ya'
Howard Coles Jr.
John 3:16!

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A Serious case of good cop bad cop
Authored by: Anonymous on Wednesday, May 16 2007 @ 02:28 AM EDT
both these peeps of bad faithers are playing everyone both knwo the deal and if
novell or MS has balls they would say here it is you be the judge , the fact is
they don't to increase the fud .novells goal is to pretend to be open source
friendly while letting MS whine out the patent FUD. As we see in the most recent
article using press releases and lying can and will come back to haunt you.

GOOD to the oin folks and now its the cold war. Where everyone yaps until
software patents are dissolved.
MS can't win a true patent war in fact is actually has the msot revenue wise
to lose , we all know it.
Silently IBM and others having been gathering up them.
this isn't about innovation it proves beyond a reasonable doubt that patent
holdings by any comany above mid sized are ntohign mroe then weapons of mass
destruction. How?
Use them to destroy competition and slow competitions innovations . Ruin lives
by causing places ot pay more then they should. Lessons tax reveunes thus and
therefore our standards of living. It is ntohign short of an attack on democracy
they are allowed to use these in such ways.
SHAME on the WHOLE CORPORATE industry for it.

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Microsoft & SCO
Authored by: Anonymous on Wednesday, May 16 2007 @ 05:59 AM EDT
Recent developments shed light on "Microsoft-S CO tie-up comes to light" and suggest that they directed SCO into this minefield to find the pitfalls.

[ Reply to This | # ]

Inconsistent - Yes, Novell - Probably not....
Authored by: mtew on Wednesday, May 16 2007 @ 12:14 PM EDT
You are correct, PJ, in noting the inconsistancies. However, given the actors
involved, the inconsistancies (i.e. lies) are more likely to be comming out of
Washington State than out of Utah. Novell may be able to provide more
information, but it has already and consistantly said that it has no specific
information. It is the other side that has changed its tune. (Those people do
seem to have a reputation for streching the truth past its elastic limit.)

On the other hand, while there are some very negative consequencs for Novell in
terms of publicity and the fact that it does enable FUD, there may be (but I
have no hard evidence) benifits to Novell, and possibly even the entire FOSS
community, from improved interoperability. Given that, I can see why Novell
might be reluctant to terminate the 'deal'.

Novell probably deserves some credit for being as open as it can be about the
deal. The other participant is the one that deserves centure.

[Sorry, I need a serious software upgrade on this machine and have not had the
time to do it, so please forgive any spelling errors.]


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A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Wednesday, May 16 2007 @ 03:02 PM EDT
Whenever I can't understand what Microsoft is up to, I tend to get a little worried.
Stupidity and ignorance of law don't seem to be among their list of faults. Not really.
They claim to know exactly which patents are infringed, and also claim that they don't plan to litigate. Even if it weren't for laches, that doesn't seem likely to cause much worry.
So now I have to wonder... what is their other hand doing while we're all so distracted with their patent-rattling?

[ Reply to This | # ]

Aren't Public Corporations Required...
Authored by: MacsEntropy on Wednesday, May 16 2007 @ 03:48 PM EDT
... to disclose the terms of any contractual obligations they may have, as part
of SEC scrutiny? Any major business deal is guaranteed to have a material
effect on the company's business risk.

If this is not so, could the real attorneys in the audience offer an explanation
of why?

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A Serious Inconsistency Emerges in the Microsoft-Novell Stories
Authored by: Anonymous on Thursday, May 17 2007 @ 07:29 AM EDT
I think if Novell, as a corporation, truly has any sense of business ethics and
pride should cancel its deal with MS. Sure, it just got into the deal and,
according to press in protest releases (how much can you believe those?) it is
leading to more and more businesses using SuSe.

However, if they truly believe that MS is spreading FUD they should protest by
canceling the deal. "We cannot continue to deal with liars" or
something like that.

Personally, I think software patents are stupid (patenting clicking one time to is that?) so I'd love to see a software patent Armageddon!

Let's get Novell to say, "Oh yeah! Well Windows infringes on these
patents!" And IBM will say, "Yeah, Windows infringes on THESE
patents." Then MS will tell both Novell and IBM that "Lotus Notes and
Netware infringe on THESE patents!" Then Apple comes along and says they
invented the GUI and sue MS. Then PARC says they actually invented the concept
of the GUI and mouse and they sue. And everyone sues everyone until the US
government realized that software patents are silly.

[ Reply to This | # ]

Inconsistency? What inconsistency?
Authored by: Anonymous on Friday, May 18 2007 @ 06:24 PM EDT
"Microsoft executives had previously told Computer Business Review that the
company had not carried out a detailed patent assessment before reaching its
patent covenant agreement with Novell.
'We did not do a drains-up inventory,' said Microsoft's UK server director,
Bruce Lynn".
All it takes for that to be true is for MS not to have combed through its
patents, checking for violations. It doesn't say that no one at MS has raised
any issues of violation of any patents. It doesn't say that MS has never talked
about any of its patents with any other companies, whether in regard to
violation or not. It just says that if there have been such issues or
discussions, they have not been the result of a thorough search. Note: I have no
idea what 'drains-up' means.

"although Microsoft won't discuss specific patents publicly, it has
discussed them in private with companies like Novell".
All it takes for that to be true is for MS to have discussed two 'specific'
patents with two companies that are 'like Novell'. It does not say that MS has
undertaken to find all its relevant patents, nor that it has determined that any
patents have been or are being violated.

[ Reply to This | # ]

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