Is Microsoft Violating Some Patents Covering Open Source?

By Peter Galli  |  Posted 2006-11-21

Is Microsoft Violating Some Patents Covering Open Source?

Could Microsoft products be in violation of some of the patents that cover Linux and open-source technologies, as many in the community believe?

Microsoft is not admitting to any such thing, but it is also not ruling out the possibility that Windows may have infringed on patents held by Novell and others in the open-source community.

There has been so much controversy about the deal and its implications that Novell CEO Ron Hovsepian released an open letter to the community Nov. 20 in which he rejected the notion that its recent agreement with Microsoft acknowledges that Linux infringes on the Redmond, Wash.-based software makers intellectual property.

To read more about Novells open letter, click here.

While David Kaefer, the director of business development for intellectual property and licensing at Microsoft, declined to say whether the company believes any of its products infringe any of the patents covering Linux and open-source technologies held by Novell or anyone else, he did acknowledge that the recent deal between the two respected the value of Novells patent portfolio.

"Weve been very clear from the outset, and the financial realities of the deal underscore this, that Novells patents have value. One need only go back to the late 90s with Novells leadership in the directory space to recognize the benefits of much of the research and development that they conducted at that time," he told eWEEK in an interview.

"For the same reasons that Novell will not say if there are any Microsoft patents they infringe, Microsoft is not going to come out and admit that it has a set of products that infringe Novells patents," he said.

Read more here about the controversial patent agreement between Microsoft and Novell.

No company would go forth and present a list of what third-party technologies its patents infringed, Kaefer said, adding though that there is some acknowledgement on the part of Microsoft of the reality that there are a lot of patents in existence, "and we would rather have certainty and transact that certainty for value than to sit on the sidelines and wait for problems to occur. We dont want t subject our customers to that," he said.

When asked to identify any Linux or other open source or code that Microsoft believed violated its patents, as well as to say where it was found and in which distribution it was included, Kaefer evaded the issue, saying that no company in the open-source or proprietary field went through every product and looked at every patent claim they might or might not assert. "I just dont think thats productive," he said.

While Microsoft had heard and understood this request, it was borne out of the notion that it would be better if all the players steered clear of one another and stayed in their own small tents rather than living jointly in a large tent, Kaefer said.

Click here to read more about why Microsoft executives believe the deal recognizes, unambiguously, that there is value to intellectual property within open-source products used by customers.

"As a person who licenses patents for a living and who manages one of the largest portfolios out there and who has done deals with other companies with large patent portfolios, there is only so far that view [of separateness] can go. No one has the resources to completely steer clear of one another: Microsoft could not bring an operating system to market if we did not have rights to some other peoples IP," he said.

"It doesnt make us good or bad; its just a statement of fact. So we just believe in this very normal process of sharing patents and we share them in a way that works for our development model and which works for the development models of the companies we work with," Kaefer said.

What was unfortunate around the deal with Novell was the assumption that because this is a new model, it would be disruptive, he said, adding that the goal is for it to not be disruptive; only time will tell if that ambition and hope pan out, he said.

Next Page: "Beat the drum."

Beat the Drum

Before entering into a patent agreement, Microsoft said it also did due diligence on the other companys patent portfolio as well as on its own.

"We look at it first by just characterizing the portfolio under rough technical buckets like, say, rights management. We then also do claim analyses and drill down on third-party patents in the products," he said.

But, at some level, companies make a decision to either live each day in a room with a bunch of patent attorneys and parse every line of code that developers wrote, or "we can all just get out of one anothers way and go solve customer problems," he said.

However, in an attempt to play down the perception that Microsoft is a voracious patent litigator, Kaefer noted that the company had just asserted one patent lawsuit in its history.

"There is a certain reality to our behavior that people need to view in the context of this relationship with Novell," he said.

"We continue to beat the drum that sharing patents is the way to do it, but you have to find creative ways to share them when there are different models with different goals. The nature of the structure of the agreement we have struck with Novell is different precisely because of the need to respect things like the General Public License and the community development model," he said.

From Novells perspective, John Dragoon, its senior vice president and chief marketing officer, said it is also important to note that the patent indemnification between the two companies is only extended to their mutual customers, and does not prevent Novell from suing Microsoft over patent infringement or vice versa.

Industry reaction has been mixed to the Microsoft-Novell agreement. Click here to read more.

Asked how Novell plans to deal with, and put right, the fallout from the deal in the Linux and open-source community, Dragoon said the open-source community "was, is and remains important to Novell. I do take exception on behalf of the companys employees who have spend their lives making contributions to the community that we have somehow sold out," he told eWEEK in an interview.

Novell in fact saw the deal as advancing the cause of Linux and open source and putting this platform on the same footing as Microsofts [Windows] and giving it a fair chance from a technical and business perspective to compete and interoperate. "Most clients have been asking us to do that," he said.

Next Page: "Brutal" feedback.

Brutal Feedback

Acknowledging that some of the feedback about the deal had been "brutal," Dragoon said "it hurts at a very personal level. What Im trying to do is encourage the community, which is so passionate about its beliefs, to see the broader picture, which is that what we are trying to do is very much aligned with their agenda. It is to advantage, as best we can, Linux and open source at an enterprise level," he said.

Novell believed that its open letter made its position on the deal and its implications quite clear, and it was hopeful that the community would give it the opportunity to "restore and repair those relationships in the light of what our intentions were, and our positions and actions are, around this," he said.

"But that is going to take time, as this is a very emotional argument for them, and I understand that and their passion about their positions. But they are very important stakeholders in Novell, and that is why we felt it important to release this open letter, which explains our position in very certain terms," he said.

Dragoon also lashed out at Red Hat, which has rejected out of hand the possibility of doing a similar deal with Microsoft.

Read more here about how Red Hat has rejected a similar deal with Microsoft.

"They [Red Hat] are talking out of both sides of their mouth. They were co-founders with us of the Open Invention Network, so clearly they have a view that intellectual property and patents have some role within this broader space. So I think it is a convenient position for them to take, but frankly I think if you look at their actions, those represent a more pragmatic, a different view," he said.

Red Hat had also been "kicked twice in the past few weeks," Dragoon said, referring to the Oracle Unbreakable Linux announcement and Novells deal with Microsoft, "so I think you need to put their comments in the right context."

But, adding to Novells woes, is the fact that Jerry Rosenthal, the chief executive officer of Open Invention Network, an intellectual property company formed to further the Linux environment by acquiring patents and ensuring their availability, has joined the chorus against the patent indemnification deal between Novell and Microsoft.

In a statement released Nov. 21, he said that OIN did not see the need for this kind of patent coverage, clients were not asking for it and there had never been a patent suit against Linux to its knowledge.

Next Page: Protection.


Also, through the accumulation of patents that could be used to shield the Linux environment, including users of Linux software, OIN had obviated the need for offers of protection from others.

"In less than a year, we have accumulated more than 100 strategic, worldwide patents and patent applications that span the Web, the Internet, e-commerce, mobile and communications technologies," Rosenthal said.

These patents were available to all as part of the patent commons that OIN was creating around, and in support of, Linux.

"We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create," he said.

Asked why Novell CEO Ron Hovsepian had done this deal, which would probably have been unthinkable under former CEO Jack Messman, Dragoon said Hovsepian has a background of working at the forefront of the customer agenda and knows what they were looking for.

He made the call to Microsoft that was the catalyst for this deal.

"That is what customers were asking for," he said.

Its also important to note that Novell is not taking criticism from all sides, but rather from just one of its five stakeholder communities, he said.

"Of the customer, partner, employee, investor and community stakeholders, four of them think this is the absolute right thing to do. This is an agreement that advances the customer agreement, and I have yet to have a conversation with a client who thinks it is a bad deal. The same can be said for most investors, partners and employees," Dragoon said.

But it also appears unlikely that Microsoft is going to back off voicing its assessment of the deal, especially the view that the deal is a validation of the fact that Linux infringes on its intellectual property.

Asked if Microsoft plans to be a little less vocal about how it views the deal, Kaefer said that whatever the company said was looked at very carefully, "but I do think it is important for us to be transparent about our views, and we have been unapologetic about the need to share these with Novell and the community," he said.

But Kaefer added that the unique aspect of its deal with Novell is that it does not just relate to proprietary products, but to open-source ones as well.

The fundamental trick is to do that in a way that gives customers assurance but does not get in the way of what the open source is all about: its development culture and licensing model, he said.

"I do think there is a bit of a double-edged standard here where, frankly, there are several corporate backers who are so strongly behind much of the success of the open source community and who have been licensing patents for years and years.

"There is a certain recognition among large enterprises that this is a normal and appropriate way of doing things as it promotes collaboration as opposed to getting in the way of it," Kaefer said.

Microsoft would also continue to reach out to Red Hat about a similar deal, even though the Linux vendor has rejected that, because they have shared customers who could benefit from such a deal, Kaefer said, noting that Microsoft remains committed to its interoperability agreement with JBoss.

Check out eWEEK.coms for the latest open-source news, reviews and analysis.

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