Novell and Microsoft 'agree to disagree'

By Matt Whipp

Posted on 21 Nov 2006 at 15:50

The collaboration between Microsoft and Novell already appears to be crumbling to dust just weeks following the announcement.

Novell has issued an open letter in which it asserts that signing a patent covenant with Microsoft not to sue each others' customers is not an admission of infringement.

Barely hours later, Microsoft released a statement claiming the companies have 'agreed to disagree' over the issue.

In a tone far from the jubilatory nature of the breakthrough announcement made at the start of the month, Novell now claims it was indifferent to the patent covenant and that it signed up at the behest of Microsoft in order to get the technical collaboration deal successfully brokered.

'Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal,' states the letter, which is signed by Novell's CEO Ron Hovsepian.

Since signing up to the patent covenant, Microsoft's CEO Steve Ballmer has been outspoken in his comments suggesting Linux customers will need their respective vendors to offer them the same protection afforded to those of Novell.

It's caused open-source projects such as the Samba web server team to denounce the tie-up. 'For Novell to make this deal shows a profound disregard for the relationship that they have with the Free Software community. We are, in essence, their suppliers, and Novell should know that they have no right to make self serving deals on behalf of others which run contrary to the goals and ideals of the Free Software community,' it said in a statement.

But the latest batch of statements from Novell and Microsoft make no bones about what's at stake. '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,' reads the letter.

Bruce Lowry, Novell's Director of Global Public Relations told us: 'Microsoft has raised IP concerns about Linux for several years in various statements they've made. We entered into a patent agreement with them not because we suddenly felt there was a specific threat to Linux, but because we simply wanted to remove concerns over patent issues from the customer buying decision. This is the same rationale we took when we offered indemnification for possible copyright infringement in Linux a few years back when SCO was so prominent. We argued then - as now - that we didn't acknowledge copyright infringement (now patent infringement) in Linux, but decided to offer indemnification to ease customer concerns over the issue.'

Microsoft conversely has never given a clearer indication that it believes Linux and open-source projects do infringe its intellectual property. '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' it said, having agreed to disagree 'on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents'.

Eben Moglen, the Free Software Foundation's legal head, studied the Novell agreement and has said that the next version of the GNU General Public License (GPL) could be adapted to ensure that agreements such as this must be applicable for all users of the software covered, regardless of whose customers they are.