Novell to Defend Open Source Using Patents

seems like Novell has a threatening tone... by garcia · 2004-10-12 06:44 · Score: 5, Interesting

We believe that customers want and need freedom of choice in making decisions about technology solutions. Those considering Novell offerings, whether proprietary or open source, should be able to make their purchasing decisions based on technical merits, security, quality of service and value, not the threat of litigation. Novell intends to continue to compete based on such criteria.

Good, I like to hear that. It's nice having some of the "big dogs" on the side of Linux. But they seem to contradict themselves when they say:

As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.

Seems like a threat to anyone out there thinking about possible litigation to me. Now, I doubt that there is any serious issues w/the Linux kernel code when it comes to IP but what if someone did have a legitimate claim? Someone like Novell making open threats like this might have them think twice.

Just a thought.

Re:seems like Novell has a threatening tone... by Jetson · 2004-10-12 06:46 · Score: 4, Insightful

The difference is that a company like Microsoft says "we don't like you and will sue you for patent infringement" whereas Novell is saying "if you sue us we'll sue you back". Big difference.
Re:seems like Novell has a threatening tone... by garcia · 2004-10-12 06:48 · Score: 5, Insightful

The difference is that a company like Microsoft says "we don't like you and will sue you for patent infringement" whereas Novell is saying "if you sue us we'll sue you back". Big difference.

Well, that's what I thought until I noticed a particular word (emphasis mine):

As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.

That doesn't seem like they are going to fight once litigation is started. That words leads me to believe that they would start litigation if anyone even brought up the idea that their IP was being used w/o permission in the kernel.
Re:seems like Novell has a threatening tone... by Cyberdyne · 2004-10-12 06:57 · Score: 4, Insightful

That doesn't seem like they are going to fight once litigation is started. That words leads me to believe that they would start litigation if anyone even brought up the idea that their IP was being used w/o permission in the kernel.
I think that's aimed at anyone planning an SCO-style FUD campaign, where they weren't actually suing people (for the most part), just using the threat to scare them. Your company comes out making SCO-like claims about products from Novell, they'll club it into submission with a truckload of patents. Remember, as SCO demonstrated, it doesn't take an actual lawsuit to scare people away from a product or into paying "protection money" - the threat alone is often enough. Until you make the mistake they did and sue IBM - which is rather like challenging a statue to a staring contest: you'll die long before it blinks...
Re:seems like Novell has a threatening tone... by kevinank · 2004-10-12 07:01 · Score: 4, Interesting

Frankly, I'm not certain that Novell's help with patents will be as important to Free software as the simple problem that most open source developers simply aren't worth suing. Taking your patent and asserting a claim against IBM, or Novell is one thing; if you win you might stand to claim some hundreds of millions of dollars. Suing me is comparatively pointless. You might sue to avoid competition, but suing for income is pretty meaningless.
On the other hand, suing (or warning of the intent to sue) to get rid of open source competition really only has the effect of having your patented whatever be removed from the code in question, which ultimately gives you less control over the problem application. You are better off leaving it in, and threatening deep pockets like IBM instead.

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Re:seems like Novell has a threatening tone... by mefus · 2004-10-12 07:02 · Score: 4, Interesting

That doesn't seem like they are going to fight once litigation is started. That words leads me to believe that they would start litigation if anyone even brought up the idea that their IP was being used w/o permission in the kernel.

Red Hat sought a clarification of SCOX's copyright as a pre-emptive measure against the good grounds they felt they have that SCOX was going to initiate a suit against them. This is the same thing, but Red Hat didn't act unilaterally, they thought there was a very good chance they would end up in court with SCOX based on McBride's palaver to the press.

Novell is merely recognizing that may be a necessary measure for them, as well. In fact, SCOX did sue them in anticipation of such a pre-emptive move by Novell in such a way they could still deny there was a controversy regarding copyright ownership of Unix SysV (which would, as has been shown at Groklaw erode their multiple cases against various Linux users, present their shareholders with evidence they didn't have sufficient control over the copyrights that were central to their fiscal plan and the justification for investment in SCOX's legal plans, and is the reason they sued for "Slander of Title" instead of something actually legally tractable.)

That's all that might implies.

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mefus
In Open Society, GPL Software frees YOU!
Re:seems like Novell has a threatening tone... by Chyeld · 2004-10-12 07:20 · Score: 5, Insightful

The main use, today, for a huge patent profile, is to cross-license it with other companies as protection against them suing you for patent infringement.

I.E. Sun goes to IBM, they both agree to cross-license their patents. Now, Sun doesn't have to worry about being sued by IBM, IBM doesn't have to worry about being sued by Sun. They both are free to sue some third company that isn't part of the alliance.

What I read from Novell's statement is basicly:
"If you attempt to go after any open source product we support, we will pull out our huge portfolio of patents and bury you in litigation for each and every infringing use of our patents we can discover. Our patents are many and powerful, mess with us and you will die a horrible and slow death by lawyers. You won't even be able to afford your funeral. So back off the FOSS projects, unless you think you've got bigger guns."

Useful, as long as no one they've already cross-licensed with is involved.
Re:seems like Novell has a threatening tone... by antiMStroll · 2004-10-12 07:23 · Score: 5, Insightful

I don't get it, this is common English usage of the word "might" to refer to potential future acts. The normal reading of this is "to those who might sue us, we intend to defend our open source inventory with the full weight of our patent portfolio." 'Defend' is the operative word. You're completely twisting into a first strike policy read as "we intend to sue first anyone who might some day sue us". It's a ridiculous, doomed to failure legal position for a company with such long experience in litigation to assert.
Re:seems like Novell has a threatening tone... by gd23ka · 2004-10-12 08:49 · Score: 3, Interesting

Assuming you could sue sombody for saying they want to sue you, what if somebody said they are going to sue your for saying you were going to sue them and you sued them back for saying they were going to sue you when you said you were going to sue them when they are talking about sueing you?

Hmm... by ticklejw · 2004-10-12 06:45 · Score: 4, Interesting

Woot for Novell, I think. It's interesting that they're only defending *their* open source software, but at least it is a step in the right direction.

I wonder what would happen to the world if more Free Software projects started patenting *their* stuff. I figure if you patent your software, you should have to make it open source.

Just some thoughts.

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"Software is like sex; it's better when it's free." -Linus Torvalds

Re:Hmm... by Alan+Cox · 2004-10-12 07:20 · Score: 3, Insightful

Its a start. It would be nice to see some kind of statement about use of Novell's patents by open source software to go with it.

In answer to your other question some folks do use patents and open source together. It isn't an ideal world and it cuts out anyone with under about 10 million US to play the game. In the Red Hat case we've published a patent promise which we hope would be a model for others to follow (or improve upon!)

IBM have also provided various patented technologies for free GPL use including key scaling technologies like RCU.
Re:Hmm... by ticklejw · 2004-10-12 07:34 · Score: 4, Interesting

It's been on my mind a lot lately, actually. Like take a car, since we often hear about "would you buy a car with the hood welded shut." I can patent a car... or maybe more specifically a type of engine or something. But the thing is, once its patented, the plans are out there, plus just anyone can take it apart and see what makes it tick.

This is why I can understand patenting real things, because if you've invented this awesome engine, all I'd need to do is reinvent it myself but find a way to make the same thing faster, smaller, and cheaper, and suddenly I control the market, not you.

Software though... the problem here is that in reality, there's infinite supply. In the supply and demand idea, what happens when you have infinite supply? Things get ugly and the whole system breaks down. That's why people want to try patenting software, to force an artificial supply limitation on something that has an unlimited supply naturally.

So while it'd be best to just eliminate software patents from the picture and let it work itself out naturally as it has for Red Hat, and is starting to for IBM and Novell, I doubt it's going to happen, at least not as long as bigger companies have more money to throw at keeping it law. What's the solution?

If you keep your software closed-source, you can't patent it, because you can't show how you did it. You're free to copyright it if you'd like, just no patenting. If you want to patent your software, you have to let *everyone* see how it works, without reverse-engineering.

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"Software is like sex; it's better when it's free." -Linus Torvalds

Quite interesting by metlin · 2004-10-12 06:45 · Score: 5, Interesting

From Novell's website (emphasis _not_ mine) --

As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software.

Well, that's a smart statement. Coming from a company like Novell, I'm sure that it would make other companies take notice.

Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.

Hmm, whom could the others be? /me thinks it could be IBM, especially considering that they both have a bone or two to pick with His Highness Darth McBride.

As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.

Brilliant! Simply brilliant. We now have atleast two big players (other than RedHat) who are prepared to offer legal support to Opensource, which is a great thing indeed!

Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others.

We are a corporation, and therefore cannot legally say FUCK YOU! to SCO. However, we'll put it in such sweet-coated words hoping that the idiots over at Utah get what we mean before we haul their asses to court.

Yay! for Opensource :-)

Any vendor? by anocelot · 2004-10-12 06:46 · Score: 4, Funny

heh heh. I wonder if they had any organization in mind when they said that.

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exactly what i would do by Power+Everywhere · 2004-10-12 06:47 · Score: 5, Interesting

use the system to defeat the system. now that novell is going open, they look back and see how much non-free content they've accrued over the years and wonder how they can use it to fight for oss instead of against it.

the only thing novel has to worry about now is making sure this doesnt come back to haunt them... you can't play the devil's game without giving him his due at one point or anther, and patents are the devil.

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Mutually assured destruction. by theparanoidcynic · 2004-10-12 06:48 · Score: 5, Interesting

Good to see a company holding a large patent portfolio openly announcing that it will basically nuke any target big enough to hit (includes most software companies) that attacks Linux.

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Double Standard by z0ink · 2004-10-12 06:49 · Score: 3, Insightful

So I geuss an agressive patent portfolio is only good when its on the side of Linux?

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Re:Double Standard by MrWim · 2004-10-12 06:56 · Score: 3, Insightful

No, an aggressive patent portfolio is almost always bad, but this is a defensive one.
Re:Double Standard by metlin · 2004-10-12 07:02 · Score: 4, Informative

No, the way they worded it, it sounded more defensive than otherwise.

I understand what you mean and the unfortunate hypocrisy, but it did not sound like that - it sounded as though they were trying to protect themselves from sue-happy companies.

Consider this -

Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.

That sounds more like, if you make claims that are offending our business, we would not take it lightly. It definitely does not sound like they would have a sue-first think-later kinda attitude.

As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.

If you sue us with your patents, we'll have to handle you accordingly.

Come on, that sounds quite benign. Looks to me like they're just trying to protect their interests.

A step in the right direction by Bruce+Perens · 2004-10-12 06:50 · Score: 5, Insightful

The Novell policy notice is a step in the right direction. I'd like the next revision of the document to state that they won't use their own patents against software licensed as Open Source. I'm told that Novell PR person Bruce Lowry has been telling that to reporters, so let's please see it in writing.

Also, I should point out, so that people can understand how far the document goes, that Novell's threat is not useful against companies with which they have already executed a patent cross-license. These could include most of the large companies in the computer industry and might include Microsoft. And of course the document is not a promise to act against anyone. Novell still gets to decide who they sue.

Thanks

Bruce

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Bruce Perens.

Re:A step in the right direction by Bruce+Perens · 2004-10-12 07:09 · Score: 3, Interesting

I agree. Of course the real fix will only come through legislation, and we have a long way to get to that. I wonder if Novell will help with that too?
Bruce

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Bruce Perens.

Brain hurts by genner · 2004-10-12 06:53 · Score: 5, Funny

My inner slashdotter is telling me I like open
source put hate patent law. I'm so confused.
How am I supposed to Karama Whore this one?
Oh well must try my best. I'll just say w00t and
hope it's enought to appease the moderation god's.

Strange but welcome allies by Anonymous Coward · 2004-10-12 06:53 · Score: 5, Interesting

Open Source has two very vocal and very visible advocates -- IBM and Novell. There's a strange contrast here between the big mainstream companies and the original "just for fun" ideas of Linux.

There's a part that want to see Linux dominate the global market...and those simply happy and content to be using it. I'm torn between wanting its ultimate success and being wary of "selling out" to the corporate world.

I guess that's one of the things the GPL is great for -- it allows Linux to take any direction people want it to go and still be perfectly Free.

It almost feels like a socialist slogan -- what's best for all of us (Linux community) is in reality the best for you as well (IBM/Novell).

I for one welcome our new SUSE-maintaining overlords.

Defensive Patent Pools by augustz · 2004-10-12 06:54 · Score: 3, Interesting

Software companies often generate and cross license patents in patent pools. This type of activity defends against other companies who actually build products and have many patents (though not against the IP firms with nothing to offer but litigation).

Novell's step is a different way of accomplishing this. Would be interesting if the open source movement itself started developing patents to play a role in patent pools.

Re:Defensive Patent Pools by Bruce+Perens · 2004-10-12 07:02 · Score: 3, Insightful

According to the American Intellectual Property Law Association, it now costs $3 Million to either prosecute or defend a patent infringement case to completion. For this reason, an offensive portfolio might not be much help. Without the funds to prosecute it, it becomes a hollow threat. I think it's much better to attempt to overturn bad patents administratively, as Dan Ravicher of pubpat.org recently did with Microsoft's patent on the FAT filesystem.
Did anyone notice that moments after the FAT patent was invalidated, we started to hear of a Microsoft-specific format for USB "disk" devices? I think they still would like to close out that path of interoperability for us.
Bruce

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Bruce Perens.

Good News, But.... by eamacnaghten · 2004-10-12 06:55 · Score: 5, Interesting

This is good news, both in respect of the defense of direct attacks against Linux that we are expecting, but also in increasing general confidence in the Open Source Model in general.

But there is a but...

Seeing is believing here. On a patent attack Novell will be tempted to cross license the issue, but for Novell customers only, not for Open Source users and distributers in general. It would be nice to see a company like Novell champion the defense of Open Source, and if they do it would be beneficial to the world in general, but how far will they go in a direction that will help competitors like RedHat as well as themselves?

Maybe RedHat and Novell will team up against attacks (RedHat already has a fund to protect Open Source over fraudulent copyright claims). That would really be beneficial, not least to RedHat and Novell!

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Web Sig: Eddy Currents

Makes Business Sense by diagnosis · 2004-10-12 06:57 · Score: 5, Insightful

It's been pretty clear for a while now that Novell wants to be a part of open source success. They announced their big enterprise server package last week (see http://www.novell.com/news/press/archive/2004/10/p r04068.html), which is driving continual SuSE upgrades and taking advantage of a bunch of Open Source work. They are making SuSE rock really hard, and it has what is so far my favorite package management tools. And anyway now they are 10 months ahead of schedule with their Enterprise stuff, thanks in part to the magic of open source.

Of course, none of this is helping to make the Netware client less of a beast on Windows.

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Novell SuSE Linux by richie2000 · 2004-10-12 06:57 · Score: 4, Informative

I recently applied for a Linux eval kit and got a 3-DVD set from Novell with SuSE Linux, both Pro and Enterprise, Groupwise and a lot of other goodies like their Netware implementation for Linux. The program is currently closed, but if they ever re-open it - go for it. The packaging was excellent, SuSE worked fine out-of-the-box and delivery was prompt. They even followed-up with a non-intrusive e-mail a month later asking how it went and pointing me to more resources.

Novell's running a class act here and they deserve our support so if you're in a position to select a distro for your company, take another look at Novell's offerings. If you download an Enterprise eval version 9, you get 30 days free installation support for it. You can't beat that.

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Not as good as it seems by dmp123 · 2004-10-12 06:58 · Score: 5, Interesting

Overall, it's quite positive for open source. BUT:

Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.

This paragraph came from the Novell statement about how they would deal with a patent infringement claim. The last bit "pursuing a licence with the patent holder" might not get you what you want. Imagine if your OSS program ends up being only usable by users of SuSE/Novell Linux, because they bought an exclusive license for the patent...

David

Resume of the Novell letter by Rosco+P.+Coltrane · 2004-10-12 06:59 · Score: 3, Funny

What follows is the heavily PR'ed Novell letter, interspersed with the layman translation. Marvel at its simplicity and at the bully-like tone of it:
* We believe that customers want and need freedom of choice in making decisions about technology solutions. Those considering Novell offerings, whether proprietary or open source, should be able to make their purchasing decisions based on technical merits, security, quality of service and value, not the threat of litigation. Novell intends to continue to compete based on such criteria.
We don't make Netware or NDS products anymore, we don't have the money. So now we jump on the Linux bandwagon and make Linux-based products, and you better believe it's just as good as our old shit. But...
* As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software. ...don't be afraid: nooo Linux ain't bad, it's aaall good. It's soft and furry and you can sleep with our products at night. So...
* Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others. ...since our very survival depends on Linux and we still have old patents and stuff that are so vague we could slap a lawsuit on any badmouther's face in less time that you can say "disestablishmentarianism",...
* In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner. ...if you so much as hint at dissing our new shiny products, we'll sue your ass off with our old patents and...
* As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell. Some software vendors will attempt to counter the competitive threat of Linux by making arguments about the risk of violating patents. Vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions, rather than the threat of litigation. ...you better believe it cuz we're fucking serious about it! You better remember that...
* Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others. ...we fucking did it before with that old canard Unix so it's fucking true!

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"A door is what a dog is perpetually on the wrong side of" - Ogden Nash

Fabulous position by erroneus · 2004-10-12 07:16 · Score: 3, Interesting

I work in a shop that has Novell as the core controller for email and network authentication. There are plans for migrating to Linux servers with Novell services and ultimately Linux workstations using Novell services.

Some of my peers express hesitation on these moves where I assert "What is Novell but a set of services? They needn't be tied to any particular OS so why not a particularly useful, flexible and free one?" Hell, for that matter, Microsoft could easily do the same thing -- hosting their services on a Linux or BSD host server system to create an ultra-stable server system that can do one hell of a lot more than it does now. (Then they really WOULD have Windows Services for Unix!)

I think this statement goes a long way to ease any potential fears of Novell customers who are moving to their Linux-based products and I think that is their primary target. It's not enough for them to say "if you get sued, we'll pick up the bill." They have to take up a pro-active stance against anyone who would think about making such a move... and so that's clearly what they are doing.

Now I don't read this as them defending the whole of the OSS community, but it's still a rather large umbrella of protection they are suggesting here... potentially larger than they might at first realize? It boggles the mind to think about it, but it's a very reassuring move on Novell's part.

If this stuff keeps up, people will scoff at Microsoft for running a "proprietary operating system" when all others are running something that is more open, trusted and established.

Re:Pay close attention. by Knight2K · 2004-10-12 07:39 · Score: 3, Insightful

So how is this FUD? (or rather some weird inverse of FUD, where you're falsely trying to instill certainty and comfort).

Hmm.. seems like a concrete example of what Terry Pratchett calls 'anti-crime' like: breaking-and-decorating.

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Novell to Defend Open Source Using Patents

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