Novell pledges patent support for open source software

By Matt Whipp

Posted on 13 Oct 2004 at 12:04

Novell has pledged to protect open source software it makes or uses with its patent portfolio.

With patents a controversial issue as Europe draws up a policy on software patents, there is a growing demand within the open source community to directly oppose the patenting of software. This is based on fears that proprietary software companies will use the patent system to challenge the success of open source software.

'Open source is a disruptive technology. As a collaborative development model, it delivers economies of scale and a quality of software that traditional software vendors are hard-pressed to match. This is great for IT customers, because it means more innovation and choice' said Jack Messman, chairman and CEO of Novell. 'Because of its disruptive nature, open source threatens entrenched interests, some of whom are fighting back with vague accusations of intellectual property risks in open source technologies. Novell today is taking an active stand in defence of the software we offer - both proprietary and open source - by stating our willingness to use our own patent portfolio to help our customers. We urge other vendors with relevant patents to make the same commitment.'

But the biggest backer of open source is also coincidentally the biggest IP holder. IBM recently pledged not to use its patent portfolio against open source technologies. But they're not acting quite in the way that opponents of patents would like. Companies such as Mandrake Linux vehemently oppose software patents and will ignore them as long as they remain unsanctioned in the EU.

Even open source-based companies such as Red Hat haven't ousted software patents altogether, but instead apply for patents as a defensive measure, although it promises never to use them against open source companies. Now Novell, which owns second-placed Linux distro SUSE along with a variety of open source products such as Ximian's Evolution and closed source software, is doing the same.

'The intellectual property risks associated with open source software are really no different than those with proprietary software,' said Joseph A. LaSala, Jr., general counsel of Novell. 'Novell is committed to the protection of intellectual property in the emerging 'mixed source' environment, where proprietary and open source solutions co-exist. While patents play an important role in protecting intellectual property, their use by some vendors to influence customer choice is without precedent.

'With this policy, we're saying we'll use our patents to actively protect Novell's open source technologies against any third party asserting its patents. We will use our patents for the original purpose patents were established - to encourage innovation - not to shut down options for customers.'

Indeed the patent risks for users of open source software is possibly even less than for users of proprietary products. Proprietary vendors often have a fairly direct relationship with their customers and could demand they stopped using their products if an injunction were served against them. But with open source the software is available to anyone to change and redistribute as they wish, making an injunction a rather futile measure.