The Indemnification Card

Opinion: IT vendors must defuse the threat of end-user patent litigation.

Over the past several weeks, weve seen a series of large IT vendors step forward to embrace Linux and open-source software. Oracle rebranded a version of Red Hat Enterprise Linux, Microsoft and Novell signed a Linux interoperability pact, and Sun put Java under the GNU General Public License Version 2.0.

As we said in this space last week, we think the enhanced stature of Linux and open source in the enterprise is a good thing, creating the kind of healthy competition between open-source and commercial software that benefits IT customers.

But parts of the recent announcements cause concern. For instance, Microsofts deal with Novell appears to have been a significant affirmation of Linux and open source, but, seen another way, the terms of the deal look like a thinly veiled threat of patent litigation. Microsoft stated that particular Novell customers and noncommercial open-source developers would be safe from litigation regarding Microsoft patents, raising questions as to who isnt safe.

Microsoft isnt the only vendor to play the patent litigation indemnification card. Oracle was careful to point to the indemnification it was offering to paid customers, and Sun has touted patent litigation indemnification since SCO launched its Linux lawsuits several years back. Whats more, Red Hat, which had long maintained that indemnification was unimportant, changed course in the wake of Oracles Linux entry by extending an indemnification promise to its own customers.

For smaller developers and vendors, the patent saber rattling of big vendors can exert a chilling effect on potential software and services offerings. For instance, the same open-source licensing that allowed Oracle to reissue Red Hat Enterprise Linux under its own logo offers an avenue through which smaller IT providers, such as regional resellers, can compete for a chunk of the same Linux platform market by distributing the free RHEL clone CentOS. But those smaller vendors typically dont have a patent portfolio on which they can exchange cross-licensing rights with the big vendors.

The major IT vendors should take a step toward defusing the vague but real threat of end-user patent litigation with the kind of broad patent nonaggression promises that Microsoft issued earlier this year regarding Web services. Doing so would lift a cloud that is casting a shadow over the software industry.

Tell us what you think at

eWEEKs Editorial Board consists of Jason Brooks, Peter Coffee, Stan Gibson, Scot Petersen and David Weldon.