Microsoft patent peace--or patent war?

By declaring a "patent peace" with Novell Linux, did the software company just declare patent war with the open-source realm?

Microsoft on Thursday declared a "patent peace" with Novell, the No. 2 Linux seller. But did the company in fact just declare a patent war with the open-source realm?

Microsoft and Novell announced the deal under which Novell's Suse Linux Enterprise Server and Desktop customers need not fear Microsoft will assert patent rights against them. In addition, Microsoft pledged not to assert patents against unpaid open-source programmers or against any open-source programmers contributing to Novell's OpenSuse.

The companies said they struck the partnership--which also includes technical cooperation to ensure various products interoperate--at the behest of customers. But the extent to which customers are reassured by the deal correlates directly with the extent to which they're worried about the absence of anything similar with Red Hat or any number of other open-source software companies.

In other words, the partnership can be interpreted as an attempt to inject Microsoft's patent values into the open-source world. That move is an affront to open-source businesses that generally share intellectual property, an approach anathema to the proprietary ways of Microsoft.

"I think it elevates the level of fear," said Raven Zachary, an analyst with The 451 Group, and gives new prominence to legal protection. "Indemnification was a hot issue a few years ago, and now it seems to be back."

Microsoft has expressed a fondness for software patents and a desire to profit from licensing them. That patent-centric approach has caused indigestion in the open-source realm at times. For example, Red Hat has forsworn using an open-source version of the Windows NT File System (NTFS) that could ease lives for those whose computers run both Windows and Linux.

"For Microsoft, it's the opportunity to try to take their whispering campaign about intellectual property and bring it out front."
--Mark Webbink, Red Hat deputy general counsel

To be sure, Microsoft's relationship with the open-source movement today is less adversarial and more sophisticated than in the past. The Novell partnership acknowledges that Linux is a force to be reckoned with. Microsoft's Shared Source plan involves some elements of the open-source philosophy. The company this week announced a partnership with Zend, developer of the open-source PHP Web site software. Microsoft has pledged not to sue anyone over a variety of patents involved with Web services.

And representatives of some open-source interests don't think Microsoft's move portends a further attack.

"Is this all things to all people? No. But it's a great first step," said Stuart Cohen, CEO of a multi-company Linux consortium, the Open Source Development Labs. "Obviously we're fairly comfortable that there aren't any IP risks (in using Linux), but it's been something standing over everyone's head."

But that doesn't mean Microsoft suddenly has an urge to help out open-source competitors. Microsoft Chief Executive Steve Ballmer said Thursday's agreement essentially provides a way to ensure the company's intellectual property preferences have teeth in the open-source world.

"We don't license our intellectual property to Linux--because of the way the Linux licensing, the GPL (General Public License) framework works, that's not really a possibility," Ballmer said. "The cleverness was, how do we get protection and respect for our intellectual property in a world in which that license agreement works?"

For its part, Novell argues that the partnership allays, not heightens, any intellectual-property worries.

"The reality is that the patent concerns are out there. We didn't invent them. This deal actually removes patent concerns for customers wanting to use Linux," said spokesman Bruce Lowry. "And it protects developers from patent challenge by Microsoft . This is good for the community. There's nothing that would stop Red Hat from doing something similar."

Alliance against Red Hat?

But Red Hat--already on the defensive after Oracle's plan to try to undercut the company's Linux support business--has a pessimistic interpretation.

"For Microsoft, it's the opportunity to try to take their whispering campaign about intellectual property and bring it out front," said Mark Webbink, Red Hat deputy general counsel.

It won't work, Webbink argued: "They should have learned a lesson from SCO"--a company that sued Linux companies and users regarding assertions that proprietary Unix technology was improperly used in open-source Linux--"that putting your customer in the middle of the squeeze play is not a good idea for business."

Zachary, though, believes that ultimately Microsoft isn't likely to go after Red Hat for patent infringement. "It would be a mistake," he said. "The public relations nightmare isn't worth the benefit, and it would make the open-source community even more hostile to Microsoft's overtures. It would also likely be a fast track to overturning software patents in the European Union."

Mark Radcliffe, an intellectual property attorney with DLA Piper, sees the move as a straightforward alliance against Red Hat.

"I think that they are picking out a Linux vendor who is weak and trying to drive companies to them, so that the stronger vendors such as Red Hat become less competitive," he said.

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