05.31.07

Patents: Novell Clarifies While Microsoft Antagonises

Posted in Apple, Interoperability, Microsoft, Novell, Patents at 8:00 pm by Roy Schestowitz

Novell has updated its PR blog to counter what it believes to be a case of misinterpretation.

A number of articles about the filings indicate incorrectly that we are excluding OpenOffice from the covenant not to sue under the patent cooperation agreement. That’s not the case. This confusion likely stems from language in the agreements around a “grandfather clause” for certain products. The covenants Microsoft and Novell make to each other’s customers relate to ‘Covered Products.’ Some products with certain characteristics - known as ‘Excluded Products’ - do not qualify as Covered Products, and thus are not covered by these covenants. Certain products available before November 2, 2006, however, are automatically covered under these covenants, regardless of whether or not they have the characteristics of an ‘Excluded Product’. The reference in the patent cooperation agreement to OpenOffice simply means that it does not qualify for this automatic coverage. It does not mean it is not covered by the covenants. As we jointly stated with Microsoft in November, OpenOffice is covered under the patent cooperation agreement.

Elsewhere on the Web, there are various discussions that revolve around software patents and their effectiveness (or lack thereof). Here is a roundup that contains a few.

The Los Angeles Times seems to suggest that Microsoft is faced with a lose-lose situation. The only gain may be coming from the ability to instill fear in the mind of the prospective customer, which still weighs Free software options.

Is Microsoft fighting a losing battle? That’s the question posed by an op-ed piece in today’s Los Angeles Times. Maybe so, the writer concludes…

As the LA Times piece points out, whether Microsoft litigates the issues or not, the patent dispute with open source may well result in even fewer patent restrictions industry-wide than currently exist. But given that the trend toward open source and open standards shows no signs of slacking, that’s not necessarily bad.

Another op-ed from eWeek concurs entirely, at least on the issue of inevitability.

When Microsoft representatives state that everyone must play by the same rules, as they often have during recent months, what the company means is that the business and technological realities under which they’ve built their empire shouldn’t be allowed to change. However, just as the appeal of decentralized solar power will, once technologically feasible, prove irresistible, so too will the tide of free software that’s already begun rolling in prove too powerful to turn back.

RedMonk explains why the approach taken by IBM is the correct one. This implicitly suggests that Microsoft is making a big mistake.

In the wake of Microsoft’s deplorable patent commentary, I’ve had the opportunity to speak with a couple of vendors on the subject of software patents.

[...]

All things considered, of course, I’d prefer that software vendors take a stance that’s cognizant of the fundmental cracks in the foundation of our patent system. But if for whatever the reason, that’s not viable, I’d recommend they do the next best thing: don’t say anything at all. It seems to work fairly well for Big Blue.

Having made this mistake, Microsoft continues to put a spin on the recent developments.

Microsoft does not believe there is an inherent contradiction between its recent statements that free and open-source software infringes on 235 of its patents, and the veiled legal threats that go along with that, and its attempts to reach out and build bridges with the open-source community.

Of course, Microsoft understands that interoperability which is based on taxation is absurd, but it stifles the rivals’ progress, assuming Linux vendors do not have extensive patent portfolios or plenty of money to spare. It’s just part of that same old manipulative agenda, which a quick look at Microsoft’s so-called ‘Open Source’ licence pretty much aligns with.

The [MSPL] Patent Poison Pill

What happens if you file a claim regarding a patent implemented in the work? The MSPL section 3B says:

That is, if you initiate legal action against any contributor to the work regarding a patent which the work may infringe, your right to the patents of that contributor (under this agreement) go away.

[...]

With a patent protection clause as anemic as MSPL 3B, I wonder why even bother adding it to the license. Though I don’t really believe it’s this useless as part of some sinister master plan, I think it demonstrates that Microsoft still doesn’t understand that there’s no distinction, in terms of our licenses, in the FOSS world between users, contributors, and companies.

For that matter, Apple is no angel either, but for slightly different reasons.

There is a cost for not being a good Open Source citizen and that cost is loss of goodwill in the community. That loss is more expensive in the long run than Apple realizes.

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