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Novell Patents

Novell to Defend Open Source Using Patents 230

Posted by michael
from the here-he-comes-to-save-the-day dept.
bbsguru writes "As another step in its transition to an Open Source developer, Novell has thrown the considerable weight of its patent portfolio in support of the movement. A letter from Novell North American President Ron Hovesepian to all of their channel partners today said, 'This initiative is aimed at any vendor that tries to mislead customers using intellectual property rights.'"
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Novell to Defend Open Source Using Patents

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  • by garcia (6573) * on Tuesday October 12, 2004 @02:44PM (#10505726) Homepage
    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.
    • by Jetson (176002) on Tuesday October 12, 2004 @02:46PM (#10505757) Homepage
      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.
      • by garcia (6573) * on Tuesday October 12, 2004 @02:48PM (#10505777) Homepage
        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.
        • by Cyberdyne (104305) * on Tuesday October 12, 2004 @02:57PM (#10505869) Journal
          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...

        • by mefus (34481) on Tuesday October 12, 2004 @03:02PM (#10505932) Journal
          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 [groklaw.net] 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.
        • Actually, I think it's a factor of somewhat old fashioned language use. I read the sentance something like this (paraphrasing mine):

          "...Novell is prepared to use our patents...in the event someone asserts patents against open source products..."

          I don't think they're planning any pre-emptive strikes against people who might or might not have LMDs (Litigations of Mass Destruction).

        • by antiMStroll (664213) on Tuesday October 12, 2004 @03:23PM (#10506131)
          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.
        • 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?
        • Well, that's what I thought until I noticed a particular word (emphasis mine):

          The use of the word 'might' here is a linguistic device and you are not interpreting it correctly context and are lending it weight and meaning it does not posess. Might in this context could mean "may possibly think about" but actually means "when/if".

      • so instead.... (Score:3, Interesting)

        by samjam (256347)
        so instead the "enemy" sells the "infringed" patents to a shell company (*cough: IP company) that itself makes no use of any patents Novell has.

        Sam
        • so instead the "enemy" sells the "infringed" patents to a shell company (*cough: IP company) that itself makes no use of any patents Novell has.

          That accomplishes nothing. Novell enforces the patents against the infringer; that's their only choice, in any event. So, the shell company presses its suit, Novell defends itself in court and launches a separate suit, alleging patent infringement, against the infringing parent company which is behind it all. The outcome is indistinguishable from the situation

    • by kevin@ank.com (87560) on Tuesday October 12, 2004 @03:01PM (#10505914) Homepage
      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.

      • Unless the patent is central to the operation of the application, and removing the app is the point. Eg: if Microsoft has patented parts of SMB (which they almost certainly have), instead of them being able to sue Samba into oblivion, Microsoft is now faced with a mutually-assured-destruction-via-patents scenario, which would at least give them pause.
      • 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.

        SCO showed that when you can't find a software author worth suing you can have the same (or better) effect by suing customers who benefit from that author's product.

        Normally large software companies accumulate patents in order to offer cross-licensing deals when one of their products is challenged. For example, until Burst came a

      • Novell seems to be saying that as a distributer of Linux, as in Novell-SuSE-Ximian, that any claim against Linux developers, from giants like IBM through Redhat or SuSE throught to one-line Joe, is a claim against their stategic inrests.
    • by Chyeld (713439) <chyeldNO@SPAMgmail.com> on Tuesday October 12, 2004 @03:20PM (#10506101)
      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.
    • Considering that they are drawing the ire of MS and even Sun/Redhat, I think they're wanting to get their ducks (penguins?) in a row and be ready for anything. Novell is positioning themselves to once again be a big player in the server (and desktop) arena.

      From what I've read of Novell Desktop, it sounds like a true windows-replacement for many corporate entities. They've really thought it out and already have proven where it works and where it won't (financial departments).

      Good luck Novell!

    • "what if someone did have a legitimate claim?"

      That would require that software patents be legitimate. Further, as others have pointed out, this *is* a legitimate use of patents currently. Note that IBM is using patents exactly this way against SCO.
    • If someone has a legitimate claim against some open source code used by Novell, and can prove it, Novell would likely agree to seek a license or would redesign the offending product. You don't sue, or fight a suit, when you know you'll lose.

  • Hmm... (Score:4, Interesting)

    by ticklejw (453382) on Tuesday October 12, 2004 @02:45PM (#10505741) Homepage
    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.
    • Re:Hmm... (Score:4, Insightful)

      by Alan Cox (27532) on Tuesday October 12, 2004 @03:20PM (#10506096) Homepage
      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... (Score:3, Interesting)

      by erroneus (253617)
      ACTUALLY I think you just hit on something.

      When a patent is applied for, all kinds of drawings and stuff like that are needed right? It would then make sense that any company patenting software should have to supply source code in support of their patent application making it available for all to see right?

      I'm not a patent attorney or really, I'm not truly familiar enough with the patent process to have a valid opinion, but from the generalities that I understand about the patent process, you have to sho
      • Re:Hmm... (Score:4, Interesting)

        by ticklejw (453382) on Tuesday October 12, 2004 @03:34PM (#10506275) Homepage
        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.
    • Re:Hmm... (Score:3, Interesting)

      by halivar (535827)
      It's interesting that they're only defending *their* open source software, but at least it is a step in the right direction.

      Actually, what they said was that they would defend any FOSS they develop or distrubute to their customers or otherwise support.

      Novell distrubutes and supports every FOSS app they deliver with SUSE. Sounds like their being pretty broad with their protective umbrella.
    • Ahem...

      Woot for Novell, I think. It's interesting that they're only defending *their* open source software

      Read it again young padawan ;-) They will defend claims against the kernel or other software that AFFECTS their offerings. The kernel is a 'big thing' and it's defense is no 'SMALL' matter.

      That is true (about patents and OSS). We as a valid market alternative pushing freedom of choice should definitely demand that others choose as we have.
    • Re:Hmm... (Score:2, Interesting)

      by seguso (760241)
      they're only defending *their* open source software

      Assuming you mean free software (as in freedom), this is contradictory. If they are protecting their free software, then they are protecting any free software. Because free software is owned by everyone to the same degree. The contradiction is in using the word "only", which implies there is some free software they are not protecting.

  • Quite interesting (Score:5, Interesting)

    by metlin (258108) * on Tuesday October 12, 2004 @02:45PM (#10505746) Journal
    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? (Score:4, Funny)

    by anocelot (657966) on Tuesday October 12, 2004 @02:46PM (#10505750) Homepage Journal
    heh heh. I wonder if they had any organization in mind when they said that.
  • by Power Everywhere (778645) on Tuesday October 12, 2004 @02:47PM (#10505770) Homepage
    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.
    • Why would you want to defeat "the system?" Apart from the fact that the term is vague, every software license in the world relies on "the system" to have be enforceable (including the GPL.) Even if you divorce the currency of innovation completely from filthy lucre, these licenses still enforce the currency which matters, the rights of the developer to his or her own work, and to place reasonable conditions on its use and modification.

      Without "the system" I fail to see how such rights could be guarante

      • Patents != copyright (Score:3, Informative)

        by LordK2002 (672528)
        Novell's statement relates to patents. The GPL is founded on copyright.

        The fact that they might both be referred to as "intellectual property" does not change the fact that they are two completely different ball games.

  • by theparanoidcynic (705438) on Tuesday October 12, 2004 @02:48PM (#10505771)
    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.
  • Double Standard (Score:3, Insightful)

    by z0ink (572154) on Tuesday October 12, 2004 @02:49PM (#10505785)
    So I geuss an agressive patent portfolio is only good when its on the side of Linux?
    • Re:Double Standard (Score:3, Insightful)

      by MrWim (760798)
      No, an aggressive patent portfolio is almost always bad, but this is a defensive one.
    • Software patents are never good, but if someone have a lots of patent,
      and never claims anyone for infringement(be it linux patents or anything else), that's atleast better..
    • Re:Double Standard (Score:5, Informative)

      by metlin (258108) * on Tuesday October 12, 2004 @03:02PM (#10505927) Journal
      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.
      • "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.

        Sounds just like the reasoning the superpowers use to explain why they possess nuclear w

    • Well, it's not quite the same tactic...

      As I understand Novell's intent here, the patent portfolio is more like a shield than a sword.

      If BigAggressiveCorporation X has a big portfolio, they can use it to attack anyone else who could even vaguely be construed as infringing, and thus some small-timers opt to steer clear of what might otherwise be a great idea because of the risk of litigation.

      Novell, on the other hand, is basically saying "Hey, all this stuff we've got patented is OK to use in open source.
    • So I geuss an agressive patent portfolio is only good when its on the side of Linux?

      Yes, you have it exactly correct. I'll assume by "Linux" you actually mean Open Source, since that's really what this is about.

      It is not the tool that is at issue here, or even the manner in which it is used. It's the reason behind the action Novell intends to take that you need to look at.

      Other companies are attempting to use their patent portfolios to choke off innovation and expansion in the software field, to main

    • Re:Double Standard (Score:3, Insightful)

      by AvantLegion (595806)
      You're confusing two separate stances as being of the same standard.

      Stance #1: It would be nice if there were no software patents.

      Stance #2: Software patents DO exist, and it would be nice to use the system against those who would abuse the system, helping to prevent (or at least inhibit) the bad things that make us take Stance #1.

      A double standard would only exist if Novell were to do what other patent holders are: target companies minding their own business, call them "infringers", and try to squeez

    • Oh take a valium.

      This is Novell's way of saying "push us and we'll push back", not "We're going to push first.".

      In the best of all worlds software patents wouldn't exist. But since they do and its obvious there are those out there willing to use them as a club, this response from Novell to that threat deserves a nod and a clap.
    • We'd rather nobody had nukes, but if someone else has them, we want them too!
  • Nice! (Score:2, Interesting)

    by XoloX (816533)
    Sounds nice... Don't know if this could eventually turn against OSS, but it sure does sound nice to have one of the bigger company's supporting OSS this way. I'm against software-patents (as in "a scrollbar" or "task-grouping", I'm sure there are even worse examples out there), but if they do turn legitimate in the EU, it sure counts to have some defense on the side of OSS. Go Novell!
  • by Bruce Perens (3872) <bruce@perens.com> on Tuesday October 12, 2004 @02:50PM (#10505798) Homepage Journal
    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

    • 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.

      Messman hints at this in the press release:

      "We will use our patents for the original purpose patents were established - to encourage innovation - not to shut down options for customers."

      In the context of the rest of the PR, it's no question that's what he means even if it isn't spelled out. Maybe their counsel made them reserve that right in case a really flagrant patent i

    • I'd personally like to see the General Patent License; a license written by those who hold patents, saying something like:

      You may freely use, modify, and derive from our patent, so long as all improvements on the patent you devise are under this license. If you release an improvement, that improvement is released under this license and you cannot restrict the further release of the improvement by the recipient. If you violate the terms of this license, it is revoked and you lose all rights to use, modify
  • Brain hurts (Score:5, Funny)

    by genner (694963) on Tuesday October 12, 2004 @02:53PM (#10505823)
    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.

  • by Anonymous Coward on Tuesday October 12, 2004 @02:53PM (#10505824)
    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.
  • by augustz (18082) on Tuesday October 12, 2004 @02:54PM (#10505835) Homepage
    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.
    • by Bruce Perens (3872) <bruce@perens.com> on Tuesday October 12, 2004 @03:02PM (#10505931) Homepage Journal
      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 [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

      • While open source programmers and projects probably won't be able to take advantage of defensive patent pools on an individual basis (due to the cost issues you cite), this might be useful for the open source IP indemnification company. They have to audit code for patent infringement anyway, so if they find anything potentially patentable, it might make sense to patent it. This would both prevent that method being patented by someone else (after the code audit) and potentially allow it to be used in a cou
      • If the patent is legit (and I think open source efforts may generate a higher percentage of legit patents then the overall software patent pool) then you don't need to individually prosecute.

        Write something licensing the patent royalty free to OSI Open Source software and if the patent is good you can always outsource prosecution to a shark firm.

        Look at the Eloas patent, Kodak's patents, SCO and Boise (funding from baystar). These firms have patent prosecution down to assembly line extortion. Similar to
  • Good News, But.... (Score:5, Interesting)

    by eamacnaghten (695001) on Tuesday October 12, 2004 @02:55PM (#10505844) Homepage Journal
    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!

    • "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."

      Novell owns Suse. Suse is almost entirely GPL. The GPL doesn't allow for what you fear. How much of Novell's open source inventory is licensed in a manner that would?

    • If they only cross licence for their own users Novell would not be able to distribute GPL code.

      They would have to leave it at a simple, we infringe, you infringe, lets leave it at that.
    • When you start against a monopoly there is only one competitor..(note period 1 should be read period.
    • by swillden (191260) *

      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.

      IANAL, but I don't think they would do this.

      Why? Section 7 of the GPL states:

      If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.

      For example, if a patent license would not permit r

  • by diagnosis (38691) on Tuesday October 12, 2004 @02:57PM (#10505868) Homepage
    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 [novell.com]), 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 (Score:5, Informative)

    by richie2000 (159732) <rickard.olsson@gmail.com> on Tuesday October 12, 2004 @02:57PM (#10505871) Homepage Journal
    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 [novell.com], you get 30 days free installation support for it. You can't beat that.

  • by dmp123 (547038) on Tuesday October 12, 2004 @02:58PM (#10505886)
    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
    • GPL Prevents That (Score:2, Informative)

      by Anonymous Coward
      Under the GPL, you CANNOT distribute a work if you cannot give people the rights to *redistribute* it.

      So, any license they negotiated would allow everyone, not just Novell, to use the GPL'd work in question.

      Now then, it's true--other licenses like the BSD license do *not* have this requirement, so we could get stuck with something becoming "Novell-only" (though even then, other entities could license the patent or use it in venues where the patent isn't recognized). But that's one of the reasons the GPL
      • "Under the GPL, you CANNOT distribute a work if you cannot give people the rights to *redistribute* it."

        A patent does not prevent someone from redistributing a work, just using it. Further, as the Sveasoft case demonstrated, the GPL does *NOT* prevent someone from making a separate agreement that prevents redistribution. However, there is actually a section in the GPL explicitly about patents though. If Novell had software that was patent encumbered, they could not distribute it under the GPL.
  • by Rosco P. Coltrane (209368) on Tuesday October 12, 2004 @02:59PM (#10505901)
    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!
  • Missing something? (Score:3, Interesting)

    by dtfinch (661405) * on Tuesday October 12, 2004 @03:04PM (#10505947) Journal
    They should give an opinion on lawsuits from patent holding companies, who don't produce any product and are simply used to attack by proxy and are basically immune from counterattacks. IANAL, but a good workaround might be to attack whoever sold the patent to the holding company.
  • Software patents are bad, even when used for 'right' (ie. our) reasons. This is fighting fire with fire.

    Wake me up when the USPTO burns to the ground. /me is off to find an alibi
  • by RAMMS+EIN (578166) on Tuesday October 12, 2004 @03:12PM (#10506024) Homepage Journal
    They're on our side now, but what if they turn against us?
  • Fabulous position (Score:4, Interesting)

    by erroneus (253617) on Tuesday October 12, 2004 @03:16PM (#10506059) Homepage
    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.

  • You know, at first I was a bit reluctant to celebrate when Novell acquired Ximian and SuSE, wondering whether this would have the turnout along the lines of their previous Word Perfect acquisition, Netscape partnership, etc.

    However, their dealings with SCO thus far have certainly been noteworthy. I especially like their to the point open letters.

    This stated patent policy from Novell is a heartwarming read in this respect. It's straightforward - no BS, I feel - talk, and one of the most important points is

  • This is stupid (Score:2, Insightful)

    by pclminion (145572)
    Sorry, but this is a really bad idea.

    Now, the opponents of Open Source are able to point to us and say, "Look, these people want us to give up OUR software patents so they can steal OUR innovations, while at the same time they support the use of software patents whenever it suits THEIR purposes."

    It makes us look like a bunch of fucking hypocrites, which we are, if this stupidity actually goes forward.

    Boooo, Novell. You really don't get it, do you?

    • That's not the way I understood the release. Basically they said "if you threaten us, we will go to the back shed and get the shotgun" They never said they were going to go after other vendors/products with their patents.

      Now they may choose to do that, which will burn up a lot of novell goodwill, but hopefully not.
  • Novell intends to continue to compete based on such criteria.

    But is this move irrevokable? What if Novell is bought-out and and some new owner decides to make their profits off of IP licensing? How safe is it to assume that this makes you safe from infringment litigation?

  • Pay close attention. (Score:3, Interesting)

    by mumblestheclown (569987) on Tuesday October 12, 2004 @03:24PM (#10506147)
    What Novell wrote sounds open, straightforward, and intelligent.

    Alas, it's pure marketing nonsense; FUD as bad as any that MS has ever been accused of putting out.

    Consider:

    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.

    Now this is a pretty bold assertion. But they seem to back it up..

    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.

    Right? Right? Well, no. not really.

    The patent issue in OSS is "third party infringement" that works as such:

    • Company P has a patent on X.
    • OSS Developer A unknowingly uses X in his OSS product L.
    • Company BigCo uses L. P notices that BigCo uses L and claims that because the source for L is "open", that BigCo has a legal duty to check to see that no patents are violated. P sues BigCo.
    Contrast this to the case where product L$ is not OSS and so BigCo feels secure that even if there is some infringement, it could not have reasonably known about it (so P sues A$)

    The Novell claim does nothing about this third party problem except in the perverse and unlikely situation where invention P just happens to be actually based on some of Novell's prior art in the first place (and probably a few common variants of that, too). Great.. nice to see that Novell would fight for this, I guess. But that hardly seems worthwhile making an announcement over.

    So how is this FUD? (or rather some weird inverse of FUD, where you're falsely trying to instill certainty and comfort). Plainly, because Novell has done nothing to address the fundamental problem of OSS and Patents but has claimed nevertheless that patents are not an issue.

    N.B. In the final analysis, they might not be an issue. But do you want to be the first BigCo that gets sued by some P? I think it's reasonable for BigCos to sit out and wait until some other BigCo pays the legal bills to get that question solved..

    • by Knight2K (102749) on Tuesday October 12, 2004 @03:39PM (#10506338) Homepage
      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.
      • ...or rather some weird inverse of FUD, where you're falsely trying to instill certainty and comfort.
        Otherwise known as "marketing".
    • Except that P cannot sue BigCo. Selling a product which uses an unlicensed patent is illegal, but buying is not.

    • In the final analysis, they might not be an issue. But do you want to be the first BigCo that gets sued by some P? I think it's reasonable for BigCos to sit out and wait until some other BigCo pays the legal bills to get that question solved..

      You mean like IBM?
    • The chain of patents or infringement is irrelevent in this case. What they are saying is that if they (or anybody who distributes linux) is sued for patent infringment then novell will sue them in turn.

      This has nothing to with fundemtal problems of patents and OSS (as if there was such a thing). It's using the patent law as it exists today agains the people who invoke it.

      Simple. You sue us we will sue you.
      • no, they didn't say that at all. Read it again. they specifically mentioned that they'd get involved if their own prior art could vindicate the situation and/or novell had a material interest to get involved. what they and their marketing machine hoped that you'd understand incorrectly from this (as you did) is the notion that novell suddenly became the OSS patent defense litigation fairy. it did not.
  • by HighOrbit (631451) on Tuesday October 12, 2004 @03:27PM (#10506187)
    IIRC, Novell retained ownership of the Unix Patents (if they aren't all already expired) when they transfered the buisness to old SCO. Since Linux is mostly implenting stuff that UNIX has already done, Novell should be safe. Basically, any functionallity that Linux implements has probably already been implemented in UNIX. therefore one of two things come into play 1) Novell already owns it, or 2)The person who asserts it would have to show why they didn't assert it for UNIX also at sometime over the last 30 years of UNIX's existance.

    Another thing to remember is that Novell was the big deal in networking and networked apps back in the late 80's-early 90's, so they probably hold a lot of IP from their old netware days.

  • Assert those patents and your turn to the darkside will be complete.

    Or something like that.
  • Damn. I knew I shouldn't have stopped reading slashdot over the weekend.
  • ...software patents are bad.
    And as the recent case between sun and kodak demonstrated, patents are much more dangerous in the hands of those outside the industry, because there is no way to retaliate with the same weapons.
    Imagine mister Bill create some company with his own money, like he did with Corbis for pictures. Let call this company "Billy et ses tueurs".
    "Billy et ses tueurs" then buy a lot of software patents, and then selectively enforce them again linux (and even if not selectively, the fact there
  • Patent Cold War (Score:3, Insightful)

    by Dracolytch (714699) on Tuesday October 12, 2004 @03:51PM (#10506505) Homepage
    Really what this sounds like is giving the Open Source guys some weapons in the Patent Cold War, where almost any company could start a litigation WWIII.

    While it's a sad statement, it's probably good to have at this point. Without it, it's only a matter of time before MS or someone else tries to litigate RedHat or similar to fiscal obilivion.

    I'd prefer the market weren't in this situation, mind you (And Novell probably does too), but all things considered, it's probably a good thing to have.

    Now, let's just hope Novell stays relatively beneficent.

    ~D
  • by starseeker (141897) on Tuesday October 12, 2004 @04:08PM (#10506699) Homepage
    Patents in the software world today are like nuclear weapons. You want a powerful arsenal in order to ensure that no one attacks you. By the same token, you are wary of attacking anyone else because neither of you will come out well.

    So if Novell is positioning their patents to defend open source, it's morally the same as if open source just went nuclear. Or more accurately, made a defense pact with a nuclear power - open source can help Novell compete, and Novell can protect open source. Indeed, in IBM's countersuit to SCO they drew their patent sword, IIRC. Granted SCO attacked IBM specifically, but if IBM decides to say "be nice to the open source community or we might decide to check you out for patent violations" that would go a long way toward keeping things quite. Open source would be given, in effect, honary membership in the patent superpower standoff. People who might consider trying to use patents to crush open source *cough*Microsoft*cough* might be forced to think twice. Legal costs for any fight of this type are really quite scary, to say nothing of the time lost. Considering how fast the software business moves, it wouldn't be surprising to me if most lawsuits are technologically irrelevant by the time they get finished.

    This is a solution I hadn't considered to the patent problem, and one I'm not wild about because a) the fundamental problem doesn't get fixed and b) it depends on the good will of companies. By the same token, however, of those companies ARE making $$ from open source it is most definitely in their self interest to keep the vultures off the open source community as a whole, and I suppose in today's society there really isn't much we can count on except self interest.
  • What open source needs is a patent organization like Creative Commons does for copyright. Open source developers would apply for a copyright (possibly with financial support from the organization). They would then sign the copyright over to the organization. The organization would issue a perpetual, royalty free license for all open source products who wish to use it. Any non-open source company wishing to use one of the open source patents could cross-license patents with the organization. The organiz
  • by Anonymous Coward

    Reprint from:

    http://linuxtoday.com/news_story.php3?ltsn=2004-08 -27-016-26-OP-BZ-MS-0008 [linuxtoday.com]

    Seems a bit of a no-brainer. Patents will be used to suppress free development more and more vigorously, maybe at least until people get so annoyed there's a revolution or something (paper-pushing career bureaucrats sometimes forget that the geeks are the ones that build the weapons, in the end...)

    If Europe is stupid enough to allow software patents (and they may well be...), then Microsoft may go on a patent offen
  • by Wolfier (94144) on Tuesday October 12, 2004 @05:32PM (#10507725)
    All your patent are belong to MS...
  • by Doc Ruby (173196) on Tuesday October 12, 2004 @06:30PM (#10508341) Homepage Journal
    Its interesting how the SCOduggery aimed at Linux has forced Novell to embrace exactly the fundamental principle of patents upon which they were originally built. A patent is a way to protect an invention without secrecy: in fact, a patent requires disclosure of all details required to build a copy of the invention, and registers that invention, in that form, with the government. The government is then able to protect the invention from copies for long enough for the inventor to have a chance to recoup their investment. And other inventors can tell whether they are inventing something already invented - both to prevent serendipitous competition, and as a guide to the inventions available for use. Simple, until patents are abused by Congress and their bribers^Wcontributors, offering patents and copyright protections on secret designs, or not even implemented (like intangible business processes or mathematics), and extending patents on the basis of profitability, rather than recoupability.

    Open Source is exactly the way that software would be protected, consistent with the original sound principles of patents. In the online market, temporary artifical government-created monopolies on inventions aren't the key to protecting investments in inventions; upgrades, service and community support are the key. Open Source is IP protection in the service of art and science, as specified in the Constitution, rather than the corporate welfare the PTO has become, a pernicious hybrid of corporate socialism and monopoly that is choking innovation to feed a few aging inventors.
  • because any company that is actually willing to take this stance to defend open source deserves my investment... especially one that can actually make money as well.

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