Microsoft/Novell Patent Deal Opens Up Opportunity

As Microsoft and Novell collaborate on Windows/Linux interoperability, companies like Black Duck and Palamida say there will be a growing need to check code bases carefully for licensing issues.

Microsofts agreement with Novell to collaborate on Windows/Linux interoperability sheds light on the many patent issues surrounding open-source and proprietary-source development, opening opportunities for those who can help sort those issues out.

As part of the deal with Novell, Microsoft said Microsoft will not assert its patents against individual noncommercial open-source developers.

Moreover, according to Brad Smith, senior vice president and general counsel at Microsoft, the Redmond, Wash., software giant has promised not to assert its patents against individual contributors to whose code is included in the SUSE Linux Enterprise platform.

A Microsoft news release on the matter said, "The patent cooperation agreement enables Microsoft and Novell to give customers assurance of protection against patent infringement claims. It gives customers confidence that the technologies they use and deploy in their environments are compliant with the two companies patents."

At a news conference announcing the agreement in San Francisco, Smith said, "Novell has an important patent portfolio and Microsoft has one of the largest software patent portfolios in the world … We wanted to figure out how we could build a bridge between open source and proprietary source … and we built that bridge."

Smith added, "If you buy SUSE Linux, you also get a patent covenant from Microsoft."

Mark Tolliver, chief executive of San Francisco-based Palamida, who was on hand at the news event to support Microsofts play, said, "I think this just raises the idea that people who use software need to be informed customers."

Tolliver likened the situation to that of the world of processed foods, where consumers can find out the nutritional makeup of the goods they purchase. The same should be true for software, he said. And Palamidas software enables enterprises to gain visibility into their software code bases and find out whether there is open-source code present and which licenses apply.

/zimages/6/28571.gifClick here to read more about the interoperability deal between Microsoft and Novell.

Tolliver said the Microsoft deal with Novell makes plain that more enterprises will need to take stock of what exactly is in their code, and opens opportunity for companies like Palamida.

"Were moving into a zone in the software world driven by this mixed open-source/proprietary-source community, and with commercial software having to intermingle with this huge amount of open-source software," Tolliver said.

He said Palamida was invited to the announcement by Microsoft, which "has been one of our customers for some time," and that Microsoft asked Palamida to sit in as a domain expert. "Our role was to be on hand as a firm who spends all day everyday on intellectual property and license compliance issues."

Doug Levin, chief executive of Black Duck Software, which competes with Palamida, said he also sees opportunity emerging.

"Black Duck helps both proprietary and open-source developers, applications, and projects figure out the [provenance] of their code," Levin said. "We can help Microsoft and the proprietary world figure out whats licensed in a proprietary way."

Or, to put that another way, "We allow proprietary vendors to remain proprietary or to mix open-source and proprietary software," he said, noting that Black Duck, of Waltham, Mass., enables enterprises to identify their own intellectual property and the licenses that govern it.

Echoing Tolliver, Levin added, "This pact represents one more step in the inexorable breakdown of the lines between proprietary and open-source software. This poses a challenge—easily addressable—to individuals and enterprise alike: to know the code on their machines and the licenses governing this intellectual property."

Moreover, the Microsoft/Novell patent deal "eliminates the uncertainties for mixed-code IT shops of commercial and open-source software intermingled," Tolliver said. "Theres always the question of I wonder if Im using any open-source software? or I wonder if Im acting responsibly?"

Meanwhile, when asked if Microsoft was looking at striking similar deals with other Linux distributors, Microsoft Chief Executive Steve Ballmer said, "Without some kind of patent co-existence framework, this is hard to do…"

On the agreement overall, Tolliver said, "This shows a certain flexibility [on the part of Microsoft] that hasnt been there before when the subject was open source, and particularly Linux."

Levin said, "Microsoft is a customer-centric company. They dont want to be left out of the new data center equation involving Linux and open source."

Moreover, Levin said he believes Microsoft has "embraced open source ever so lightly through their Shared Source initiative, and this move shows the next step in that evolution." Indeed, he added, "Look at the parallels between the widespread adoption of Windows as a client operating system and the widespread adoption of Linux as a server operating system, and this move appears very similar to Microsoft embracing the Mac in the mid-80s."

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