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Novell's New Patent Policy
Tuesday, October 12 2004 @ 10:32 AM EDT

Novell is announcing today a new patent policy, in which they say they are prepared, if necessary, to use their patent portfolio, "which covers technologies with significant value and widespread deployment in the IT sector today", to defend against patent attacks on open source products they deliver. Here is the the policy statement. The heart of it is this:

"In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.

"As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell. Some software vendors will attempt to counter the competitive threat of Linux by making arguments about the risk of violating patents. Vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions, rather than the threat of litigation."



Here's the press release, which says, among other things:

"Open source is a disruptive technology. As a collaborative development model, it delivers economies of scale and a quality of software that traditional software vendors are hard-pressed to match. This is great for IT customers, because it means more innovation and choice," said Jack Messman, chairman and CEO of Novell. "Because of its disruptive nature, open source threatens entrenched interests, some of whom are fighting back with vague accusations of intellectual property risks in open source technologies. Novell today is taking an active stand in defense of the software we offer both proprietary and open source by stating our willingness to use our own patent portfolio to help our customers. We urge other vendors with relevant patents to make the same commitment."

"The intellectual property risks associated with open source software are really no different than those with proprietary software," said Joseph A. LaSala, Jr., general counsel of Novell. "Novell is committed to the protection of intellectual property in the emerging 'mixed source' environment, where proprietary and open source solutions co-exist. While patents play an important role in protecting intellectual property, their use by some vendors to influence customer choice is without precedent. We believe that customers should be free to make purchasing decisions based on factors such as price, value, security and service, not based on threats of intellectual property litigation."

"Our approach is to protect customer choice, not threaten it, and support the innovation inherent in the open source model," Messman added. "With this policy, we're saying we'll use our patents to actively protect Novell's open source technologies against any third party asserting its patents. We will use our patents for the original purpose patents were established to encourage innovation not to shut down options for customers. We hope our leadership in this arena will lead other patent holders to take a similar stance."

Here is a section of the statement they sent to customers:

Dear Valued Customer:

Today Novell expands its commitment to you by putting its extensive patent portfolio squarely behind its customers, and we thought you'd like to know about it. Our motivations are simple: protect customer choice and preserve marketplace innovation.

Novell has just issued a statement announcing our preparedness, if necessary, to use our own patent portfolio - which covers technologies with significant value and widespread deployment in the IT sector today - to defend against patent attacks on open source products we deliver. Both the press release and policy statement are available at http://www.novell.com/company/policies/patent/

This initiative is aimed at any vendor that tries to mislead customers using intellectual property rights as a reason to avoid pursuit of an open source offering. To our knowledge, no vendor has actually filed a patent suit against an open source product. Instead, some appear to be simply trying to sow doubts in the minds of customers to avoid competing on technical merits, security, quality of service and value. Novell believes that open source software poses no greater risk of patent infringement than does closed source software.

(Update: Media coverage here and here and here with more details. IT News quotes Bruce Lowry as saying that Novell currently holds 411 patents and the company receives about 30 new patents each year. eWeek's Steven J. Vaughan-Nichols has an opinion piece here on what's wrong with software patents.)

While commending Novell for its willingness to fight for FOSS, and I do, from the heart, I can't help but remind everyone that if there were no software patents, none of this would be necessary. Think about it. Please.


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