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

In other words...

[xzvf]

Novell open source users are not protected from Microsoft's vaporware patent lawsuits.

Re:In other words...

[dattaway]

or in plain English, "Novel is fucked and didn't read the license before accepting."

They are not clones

[uspsguy]

Functionality is the key. Linux products are dependable and do not crash so they are functionally different than any MS product.

Windows Clone?

[Lost Penguin]

Windows was a clone product. (MAC/X-Windows)
Microsoft Exchange is a clone (sendmail)
DOS (CPM)
Microsoft does not invent, only "embrace, extend, extinguish".

Re:Windows Clone?

[The FooMiester]

MS would do better to stop piracy than to stop "clone products".

Besides, what "new computing concept" have they come up with?

I used Word Perfect before there was an MS Word

I used visi-calc before there was an Excel.

I can't think of one piece of software that was written by MS that wasn't written somewhere else first. I could be wrong, however.

Unless they're talking about "look and feel", which I won't comment on.

Re:Windows Clone?

[Locutus]

From what you described as the "ribbon interface" in MS Office 2007, it sounds like context based toolbars. The application menu and tool bars of a mid 90s OpenDOC container part comes to mind. It's also pretty common in most word processor and spreadsheet apps since they do this when adding things like graphics and charts to a doc. And there are probably tons of other examples of menus and/or toolbars changing based on the context of the editing or user interest.

Is this the Microsoft "innovation" you are talking about?

LoB

Section is vague at best

[morgan_greywolf]

The section is vague at best. Hundreds of open source projects have "the same or substantially the same features and functionality as a then-existing product (or major component thereof) of [Microsoft] and that (a) has the same or substantially the same user interface, or (b) implements all or substantially all of the Application Programming Interfaces of the Prior Product."

Samba could be viewed as a clone product, but so could gedit (clone of notepad). Firefox might be a clone of Internet Explorer 7. What about totem? Looks an awful lot like Windows Media Player, at least the older versions. Nautilus behaves a lot like Windows Explorer, huh?

This section is stupid and ridiculous and is likely to get struck down by the first courtroom judge that looks at this thing as being too vaguely worded.

IANAL and this is not legal advice.

Magic Beans

[_Sprocket_]

The more details come to light... the more I'm wondering what Novell got out of this deal.

yeah well

[JeanBaptiste]

I patent the numbers 0 and 1

A penny per usage

(patents for the numbers 2, letters F and U still pending)

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?

Re:they're trying to push Novell

[statusbar]

I attended an infiniband conference and someone from Novell spoke there about Linux and Infiniband and the changes that they are making to linux for real time performance. He specifically mentioned using RTLinux and was a bit rude to me and did not answer my question when I asked him specifically about the RTLinux/FSMLabs/WindRiver patents which have been controversial.

Doesn't matter to me though, Xenomai wins in every way and it is not encumbered by any existing patents.

--jeffk++

the word they're looking for

[Mateo_LeFou]

the word they're looking for is not "clone" but "competition". This is, therefore, a Very Special agreement indeed:

"We will not sue you for patent infringement as long as your products are not similar to ours."

Missing The Point

[mpapet]

IMHO the whole point of the effort on Microsoft's part was to thin the money-making distro herd.

1. Create the perception that there is an approved Linux distro. This is a requirement for bureacracy-bound businesses that have to check with Legal/PHB's before "purchasing" a Linux distro.

2. What better way to waste Novell's resources than create documents that protect nothing? It's a poorly run organization and this agreement is an excellent example of _exactly_ how poorly it is run. I'm sure there are great people that work at Novell, they just don't get to make strategic decisions. Novell is slowly circling the drain and Microsoft needs the perception of competition and cooperation to keep legislators pushing their agenda. http://finance.yahoo.com/q/ks?s=NOVL

3. One of Microsoft's goals is to capture Linux revenue. This, more than anything else will keep OSS at bay.

Is there any relevance?

[Shotgun]

I'm soft of totally confused looking for any relevance to anything here. Microsoft gave Novell $40M, and agreed not to sue Novell's customers, unless Novell's customers were using Novell's product (the wording of the exceptions seem to exclude anything that could possibly be in a distribution).

My question is, "What difference does the agreement make?"

M$ could possibly sue Novel, et.al., before the agreement was signed. Now, M$ is out $40M, and still could possibly sue Novel, et. al. The possibility of M$ winning such a lawsuit remains as remote as it was before. It appears that the $40M was simply the cost of a publicity stunt. Wouldn't another fake grassroots campaign have been more effective?

Flaming response (couldn't resist)

[fritsd]

Ok, I'll flame you then (sucker! :-)).

X probably exercises a lot of memory, so have you ever tried to install a memory checker such as memtest86, reboot with it, and run it all night? It might catch memory errors that don't often show up under regular use. I don't know about the i810 driver, but if you experience problems when you do the exact same action (e.g. playing a 3-d game or something) then you might want to spend the energy to complain at your distribution maker that game Y always crashes or has weird stripes in 800x600 resolution with your kernel version and video card etc.

I'm as big a Linux fanboi as the next, but I would never claim that you're doing something wrong. That kind of behaviour (lockups and crashes) is simply unacceptable, I think everyone agrees. When you say X.org is still in its infancy I guess you refer to the version 7 split into modular system; do you mean you never had such lockups under a previous version? That might also be an important data point to tell in your bugreport.

As you said, you submit bug reports where possible: great. For other readers I'd just reiterate: don't expect anyone helping you out if you never send in a short formal bugreport with the details you (at your technical level) deem important. The authors of the software (X.org in this case) may have never tested it out in your exact configuration; PC hardware is very diverse. Complain to your distribution makers: they'll assess it and pass it on upstream (possibly after a long time; if you want instant results, hire somebody to solve it).

Try to see it from the X.org programmers' perspectives (no, I'm not one of them, I'm guessing here): if you receive a lot of similar, readable, not too ranty, detailed bug reports then maybe (if you have time) you can track and fix the issues. But you are not going to trawl general forums (like slashdot) to see if somebody complains "it doesn't work".