The Microsoft-Novell Marriage of Two Minds Starts to Go Schizo

Published: November 28, 2006

by Timothy Prickett Morgan

You knew that any peace between Windows and Linux couldn't last very long. Soon after Microsoft's chief executive officer, Steve Ballmer, and Novell's chief executive officer, Ron Hovsepian, announced their landmark deal to see Microsoft distribute 350,000 SUSE Linux licenses, work on Windows-Linux interoperability, and cooperate on software patents, Ballmer caused an uproar by stating that Linux violates unspecified Microsoft patents and that the Novell deal "appropriately compensated Microsoft for our intellectual property."

This statement, of course, made Novell look like a bit of a heel. And it also agitated the very Linux community that Microsoft is trying to make peace with.

After these comments hit the press, Novell published an open letter to the software community to say that when it inked the deal with Microsoft, it in no way was admitting that there was any violation of intellectual property inside Linux as it relates to any Microsoft technologies.

In that letter, Novell explained that it signed its agreement with Microsoft to do joint sales and to ensure interoperability, but that Microsoft wanted provisions to cooperate on patents as well. "Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell," the letter said. "Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements here."

The funny bit is that Novell chopped out a whole chunk of paragraph five in the letter. Here is how it was originally written, and the red ink is what is missing on the bit published on the Novell site:

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. To claim otherwise is to further sow fear, uncertainty, and doubt, and does not offer a fair basis for competition. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents. We strongly object to the usage of our agreement to suggest that members of the Linux community owe Microsoft any remunerations."

After Novell issued its statement, with one punch pulled but others still in tact, Microsoft then reacted with its own short statement.

"Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement. Both of our companies are fully committed to moving forward with all of the important work under these agreements. The agreements will advance interoperability between Windows and Linux and put in place a new intellectual property bridge between proprietary and open source software. Customers and participants throughout our industry will clearly benefit from these results. We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place."

The rest of the Linux community, please make out your checks to Microsoft Corporation. With the exception of Red Hat, the dominant commercial Linux distributor and one with a much smaller software patent portfolio than Novell, Microsoft probably won't pay much to "cooperate on patents." So you will not be getting much of that Microsoft money, and you will probably pay a lot more than you get, in fact.

All of this is just a clever way of getting some of the protection of IP licensing without an actual patent license agreement. (To be fair, in the case of Linux or any other open source project, lawyers and experts could argue all day as to whether or not it is even possible to have a patent cross-licensing agreement of any kind between open and closed software.) Novell needs the money and the Microsoft partnership, which will give customers some protection. At least until Microsoft's leaders or lawyers decide to sue the people behind Linux. That could happen tomorrow--or never. You just can't tell.