Novell vows patent defense of open source

"Open source threatens entrenched interests, some of whom are fighting back with vague accusations of intellectual property risks in open-source technologies," Novell Chief Executive Jack Messman said in a statement. "Novell today is taking an active stand in defense of the software we offer--both proprietary and open source--by stating our willingness to use our own patent portfolio to help our customers."

One of the potential barriers to corporate adoption of open source is that the software, which can include contributions from several parties, may infringe on the intellectual property of others. Pointing to the absence of the legal protections that can accompany proprietary software and a study that found Linux could violate 283 patents, start-up Open Source Risk Management, offers a form of insurance against legal claims.

Although there are significant caveats to the company's policy, Novell essentially is trying to cause a potential accuser to think twice before suing over the use of open-source software. In the case of an infringement accusation against Novell or a Novell customer, the company will defend the software as it would in a case involving its proprietary products, Novell said.

But Novell stopped short of offering its defense for a patent attack against an open-source software user that's not a Novell customer--even though a finding of patent infringement could directly affect Novell and its customers. "We would consider it," Novell spokesman Bruce Lowry said of defending a third party.

Novell said it will use the existing defenses against patent infringement claims: asserting the patent is invalid because it's predated by "prior art" of the same invention; asserting the open-source software doesn't actually use the patent; writing replacement software that sidesteps the patent; or, most severe, counterattacking in instances in which the accuser infringes on Novell patents.

The company posted a patent policy on its Web site, intending to ease the concerns of businesses using open-source software. Novell already offers some legal indemnification against copyright infringement claims brought against Linux server software customers.

A balancing act
Patents for hardware and software have created a sometimes delicate balancing act among companies. Companies often sign cross-licensing deals permitting use of each others' patents, but sometimes hostilities break out.

"I think of it as the Cold War equivalent of nukes," said Marc Fleury, CEO of the JBoss open-source Java infrastructure software in an interview after Sun Microsystems settled a patent suit brought by Kodak. "As long as nobody triggers, that's good. As soon as somebody starts playing rogue, that's dangerous."

The added wrinkle with collaboratively open-source software is that companies might sell software developed by others. In Novell's case, the company pledged to get involved even when Novell didn't write the software in question.

The strategy expands Novell's previous policy. "We said we'd use patents to protect our technology. But if the open-source technology isn't our own technology, but part of something Novell offers, could we ultimately use our patents to defend it?" Lowry said. "The answer is yes."

Novell has patents in technology for operating systems, word processing software, directory software and other areas, Lowry said. "We certainly believe we have a patent portfolio that is very relevant to the current computing environment," he said.

Microsoft, a company whose proprietary products are directly threatened by Linux, OpenOffice.org and other open-source packages, believes open-source software needs to fit into the existing intellectual property legal framework. "It is important for everybody to respect and play by the same rules...We do hope that everyone will respect the intellectual property rights that others have," said Brad Smith, Microsoft's top lawyer, when asked earlier how Microsoft will deal with patents and open-source software.

Novell called on other software companies to use patents to defend open-source software. The company said it will use its existing patents should others claim Novell is violating their patents.

Novell's business is built around a hybrid of selling proprietary software and offering services around freely available open-source software. The company purchased SuSE Linux and open-source desktop software company Ximian last year to capitalize on the growing interest in open-source software.

Patent polarization
The issue of patents is divisive in the open-source community and the software industry in general.

Red Hat, in its patent policy, states that "software patents generally impede innovation in software development and that software patents are inconsistent with open-source/free software."

Some major patent holders have promised not to unleash their lawyers over open-source programs. IBM has said that it will not use its massive patent portfolio against the Linux operating system kernel.

But at the same time, IBM, as well as other open-source providers such as Sun and Hewlett-Packard, remains committed to boosting patent portfolios as a means of protecting intellectual property. And Red Hat, the top Linux seller, is building its own patent portfolio for defensive purposes.

In its statement on Tuesday, Novell's general counsel, Joseph LaSala, said the intellectual-property risk associated with open source is no different than that with proprietary software.

"With this policy, we're saying we'll use our patents to actively protect Novell's open-source technologies against any third party asserting its patents," Novell's Messman said.