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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.


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