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OSBC First you get everyone riled claiming open source and Linux infringe on your patents, then you won't detail those patents. Why? The paperwork.

Yes, Microsoft cited administrative overhead for not detailing the 235 Microsoft patents its chief legal counsel recently told Fortune exist in Linux and open source.

Microsoft patents attorney Jim Markwith told OSBC it would be "impossible" for Redmond's bureaucrats to respond to the volume of responses that would result from disclosure. Also, apparently, it's ungentlemanly to name names.

"Most people who are familiar with patents know it's not standard operating procedure to list the patents," Markwith said. "The response of that would be administratively impossible to keep up with." Far better to rattle sabers instead.

He spoke up during an Open Source Business Conference (OSBC) panel where Microsoft's director of platform strategy Sam Ramji joined Novell's director of marketing for Linux and open platform solutions Justin Steinman to explain why their controversial sales, marketing, technology and patent agreement is beneficial for open source.

Steinman trotted out names and numbers he claimed proved the agreement is driving adoption of Linux and open source. These included deployment of 40,000 new Suse Linux Enterprise Server (SLES) licenses, a 650 per cent growth in Novell's Linux business in the first quarter, and new customers including Walmart and Nationwide.

On technology, we're talking federation of Active Directory and eDirectory, accessing SharePoint Services from eDirectory, and improving the Xen hypervisor to run Windows Server 2008 on SLES. "You did need this deal," according to Ramji who said mutual support for standards only goes so far.

But back to Forbes, and the part of the companies' deal that stuck in the community's craw - the covenant not to sue.

According to Ramji, the executive tasked with the difficult job of straddling Microsoft's growing support for open source in server and tools, and aggressive and unpredictable statements from management on patents, made a jaw dropping attempt to explain away the Forbes article.

"The reason we disclosed that, is because there was a request for transparency following the Novell deal Iast November. This was a response to that transparency," Ramji said. It was at that point the OSBC audience erupted.

Steinman conceded the Forbes article proved uncomfortable reading for a company flamed by the community over the pact. "We had another round of here we go again... we are pretty confident we can offer the customers coverage [from prosecution]. In the net net, we wish the tone of the article had been different."

But what of that covenant not to sue? Steinman's justification was customers had heard competing claims from Microsoft and Novell over patents in Linux, were uncertain and wanted to make "it go away". "When we look at this, we've been clear there haven not been IP infringements in Linux - period, full stop."

Once again, though, it was clear there exists an uncomfortable difference of opinion between Novell and Microsoft. "As a company that puts $7bn a year into R&D, we have a fiduciary responsibility to our shareholders. We have no desire to litigate - we spend $100m a year defending ourselves against patent lawsuits," Ramji said, staking out Microsoft's position on the fence.

Which raised the question of what will happen to customers of the more successful Red Hat Linux distribution. Seems those customers will be left swinging, awaiting prosecution or Microsoft's licensing representatives to come knocking. Ramji said: "We continue to offer licensing agreements to distributors of specific pieces of software called out in the article. Red Hat is welcome to come to the table, as is any other distributor."

Apart from the agreement itself, it's the lack of publicly available details that has alarmed people and caused concerns over what the deal really means. That could soon come to an end - at least partially - as Novell said it planned to release details with its regulatory filings this month - Novell's filings have been delayed as it adjusts for the impact of options on past financials.

Don't get your hopes up too high, though, as Novell promised to delete information from the filing that it considers too sensitive for public consumption. "We will be publishing the Microsoft agreements as attachments to the 10K by the end of May. There will be redactions in those filings. But the filing will be filed as part of 10K by end of this month," a Novell spokesman said.®

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