Microsoft, Novell, and "Clone Product" Lawsuits

El_Oscuro writes "The MS/Novell deal specifically excludes patent protection for "clone products." In the agreement, a clone product is broadly defined as "a product (or major component thereof) of a Party that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of the other Party ... and that has the same or substantially the same user interface, or implements all or substantially all of the Application Programming Interfaces of the Prior Product." The text of the clone product definition subsections is very cumbersome to read, but it specifically mentions OpenOffice, Wine, and OpenXchange by name without asserting that they are necessarily clone products."

Comments

The devil in the details -- again

[CodeShark]

Read on... the agreement excludes patent suits with the following exceptions: clone products, foundry products, and other excluded products. Here's the parts I have trouble with:

• The clone product part of the agreement includes the following text "...that are compliant with a specification of a standards organization as to which the other Party has consented to the use of its Patents therefor, shall not be considered in determining whether the product is a Clone Product." in other words, if a product is compliant with a web standard for which MS or Novell holds a patent, they can't use the inclusion of the functionality standard to defend against a lawsuit. Great. Wanna bet MS has patents related to browser rendering (a major component) functionality that hits this?
• More fun language... "even if a new product (or major component thereof) meets such requirements, only those Patents covering inventions in new features and functionality in such Clone Product may be asserted against such Clone Product, and only with regard to Clone Product Functionality." In other words, if MS adds something that may or may not have patent to a product, if a "clone" figures out how to duplicate it, the patent protection agreement doesn't apply. Hmmm. Sound familiar?
• Notwithstanding subsection (i) above, Wine, OpenXchange, StarOffice and OpenOffice are not subject to such subsection (i)... AKA reverse engineered clean room code which began development before the DMCA existed isn't going to be protected from lawsuits -- even though there is no copyright infringement and no digital rights law that relates to that early code.
• It gets worse: "Foundry Products" i.e. third part products not designed by or specified by Novell etc. aren't covered. So if I read this right any tools, demos, etc. that might exist on a SUSE distribution are excluded from patent litigation protection and are explicitly denied protection by the clause which states that software which is " made, reproduced, sold, licensed or otherwise transferred through or by the Acting Party for the primary purpose of attempting to make such product subject to the covenants under the Covered Patents of the other Party so that a third party's customers can receive the benefit of such covenants." will be excluded. Hooray. Good job Novell -- cover yourself but shoot all third party developer's ability to protect ourselves by excluding our work -- even if you distribute it.
• and finally my personal favorites. Other excluded products include (a) office productivity applications (word processing, spreadsheets, presentation software, etc.).... (b) new features and functions in the following categories of products of the Parties, but not to the extent the products embody operating system software or other enabling technologies: (i) video game consoles, console games, video game applications designed to run on a computer, and on-line video gaming services ... (ii) business applications designed, marketed and used to meet the data processing requirements of particular business functions, such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management; (iii) mail transfer agents (aka email servers); and (iv) unified communications. In other words, none of the major applications or application types usable by a business are covered by the no-suit ingredient.

Sounds like a good enough set of reasons to not support Suse Linux any more. Ubuntu anyone?