Feeds

Is your software free, open or litigated?

The MS/Linux patent wars begin . . .

Boost IT visibility and business value

In 2003 Microsoft hired IBM attorney Marshall Phelps to build up Redmond's patent portfolio. Phelps had overseen the growth of IBM's IP licensing operation from nothing into a multi-billion dollar business.

"You don't just get patents for the sake of getting patents," Phelps said a month before taking the job. F/OSS advocates duly took note - and began to perform a sweeping review of potentially infringing code in the Linux kernel.

Under the Microsoft-Novell deal, Novell agrees to recognize Microsoft's intellectual property claims. Novell in returns receives a "Covenant Not To Sue".

This is something that Free Software developers have been fastidiously careful not to do - and this insistence formed the basis of the FSF's successful arguments in the European Courts. Free software supporters argued that the techniques were prior art - (the patent is invalid) - or reverse engineered without reference to the original (the patent doesn't apply). Microsoft had argued that F/OSS developers could, and should, license its MCPP protocols. GNU supporters argued that they couldn't. Novell has succeeded in driving a wedge in the movement where previous attempts have failed.

Redmond can now return the the European Commission and point out that Linux can co-exist with Microsoft IP quite happily - it's only those cranks and communists who disagree. And even more importantly, Microsoft can argue that a major Linux company has implicitly recognized its IP claims.

Microsoft wanted this agreement so badly it's agreed to pay an unspecified sum to Novell for the Covenant. This might strike you as odd - and you'd be right. Companies that license intellectual property do so in the expectation that they receive a royalty, rather than dish one out. But the downstream benefits to Redmond are enormous. Novell has handed it a priceless legal filip, and as it begins to collect royalties from other businesses that use Linux, it'll doubtless see it as a worthwhile down payment.

There's much debate today on whether Microsoft violates Section 7. Novell, who may well have been poorly briefed by insisting they entered into a "Covenant" rather than a patent licensing arrangement, clearly disagree.

Today Novell boasts the following quote from Steve Ballmer to underline the deal:

Done deal? The Microsoft Novell partnership needs to clear the GPL

It's something we didn't think would have been possible, either. Or at least not without the decision by the massed ranks of the attorneys responsible for keeping vigilance over free and open source software to detach their brains for a week. (Perhaps they were otherwise occupied - in Sadville.

It's put pay to the view that Microsoft's patent threat would remain a phoney war, with IBM's potential threat of massive retaliation helping keep an uneasy peace. But IBM has been nowhere to be found. And the FSF's General Counsel Eben Moglen hasn't helped the cause by permitting this thought bubble to escape, and be recorded by a VNU reporter:

"Maybe it will turn out that [Novell and Microsoft] have cleared the barrier by a millimetre," mused Eben.

Oh, dear.

The patent wars have begun. ®

Build a business case: developing custom apps

More from The Register

next story
KDE releases ice-cream coloured Plasma 5 just in time for summer
Melty but refreshing - popular rival to Mint's Cinnamon's still a work in progress
Leaked Windows Phone 8.1 Update specs tease details of Nokia's next mobes
New screen sizes, dual SIMs, voice over LTE, and more
Mozilla keeps its Beard, hopes anti-gay marriage troubles are now over
Plenty on new CEO's todo list – starting with Firefox's slipping grasp
Apple: We'll unleash OS X Yosemite beta on the MASSES on 24 July
Starting today, regular fanbois will be guinea pigs, it tells Reg
Another day, another Firefox: Version 31 is upon us ALREADY
Web devs, Mozilla really wants you to like this one
Secure microkernel that uses maths to be 'bug free' goes open source
Hacker-repelling, drone-protecting code will soon be yours to tweak as you see fit
Cloudy CoreOS Linux distro declares itself production-ready
Lightweight, container-happy Linux gets first Stable release
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Why and how to choose the right cloud vendor
The benefits of cloud-based storage in your processes. Eliminate onsite, disk-based backup and archiving in favor of cloud-based data protection.
The Essential Guide to IT Transformation
ServiceNow discusses three IT transformations that can help CIO's automate IT services to transform IT and the enterprise.
Maximize storage efficiency across the enterprise
The HP StoreOnce backup solution offers highly flexible, centrally managed, and highly efficient data protection for any enterprise.