That possibility became even more worrisome to some with a new disclosure by Sun Microsystems this week regarding terms of its sweeping legal settlement with Microsoft, hammered out earlier this year.
According to the settlement between the two, Microsoft and Sun agreed not to sue each other or their respective customers for patent infringements that were alleged to have occurred before April 2004, as well as 10 years into the future.
But a new SEC (Securities and Exchange Commission) filing by Sun notes in the fine print that while Suns StarOffice product is covered under this patent-infringement clause, OpenOffice is not.
Not only is Microsoft allowed to sue any company–including Sun–for alleged patent violations connected with OpenOffice, but Sun is required to provide Microsoft with legal help in bringing such lawsuits against OpenOffice users.
The Seattle Post-Intelligencer was first with news of the OpenOffice exception clause.
StarOffice and OpenOffice are both desktop office suites. Suns StarOffice is based on the OpenOffice source code, which is administered by OpenOffice.org. But StarOffice also includes some elements that are not part of OpenOffice, such as certain fonts, file filters, sorting functionality, clip art and templates. Sun has said future versions of StarOffice will be based on the OpenOffice source.
Market watchers cautioned against reading too much into the legal wording around OpenOffice.
"Microsoft is just keeping its options open," said Tom Moore, an IP (intellectual property) litigator with the Palo Alto, Calif., firm of Tomlinson Zisko LLP. "It would be a bad PR move for them to go after OpenOffice licensees."
Moore also noted that Microsoft, because of its own legal wrangling with the U.S. Department of Justice, needs to be even more careful than most in bringing patent lawsuits. "Theres the concept of patent misuse that could come into play," he said. "When a patent holder is a monopolist, they need to move a little more carefully than does the usual patentee."
"The language in the settlement contract in which Microsoft reserves the right to file a lawsuit against OpenOffice users is not all that unusual," concurred Yankee Group senior analyst Laura DiDio. "I believe Microsoft is hedging its bets and leaving all potential areas of redress open to the company."
"That said," DiDio continued, "I do not believe Microsoft is currently constructing a strategy or scenario in the near or intermediate terms to quash OpenSource via litigation. So, while its undeniably possible that Microsoft could sue OpenOffice users, the probability is low—at least for the next two years."
OpenOffice has barely made a dent in Microsofts massive market share for desktop office suites. But "if OpenOffice mounts a serious challenge to Office three, four or five years down the road and we see Office experiencing market erosion similar to that of NetWare against Windows NT, then Microsoft would fiercely defend its turf," she predicted.
Sam Hiser, a community member of OpenOffice.org, said he was not fazed by Suns new disclosure regarding OpenOffice.
"The airing of part of the agreement in the SEC filing is not alarming in the slightest, and represents no change in the environment or disposition of the two companies concerned," Hiser said.
"This was a legal agreement in which Sun and Microsoft agreed to license various technologies for certain periods of time. Such an agreement requires the parties to define which technologies are included and which are excluded. OpenOffice was merely excluded. Risks, if any are perceived, are the same as before."
"Suns commitment to open source remains the same as ever: strong," Hiser said, noting that Sun is an active participant in the OpenOffice, GNOME, Mozilla and other open-source development communities.