Interesting, the same IP which EC Commissioner Neelie Kroes viewed as obvious and non-innovative…yes, I think MS is trying to outmaneuver the EC’s decision on their antitrust non-compliance.

“Microsoft has said it would charge for interoperability information because it was based on the company’s own innovative work and protected by patents.

But the Commission charged in March this year that competitors gave away such software whether or not it was patented.

“The Commission’s current view is that there is no significant innovation in these protocols,” European Competition Commissioner Neelie Kroes said in a statement that month.

“I am therefore again obliged to take formal measures to ensure that Microsoft complies with its obligations,” she said.

http://www.crn.com/software/199200601 ”

http://boycottnovell.com/2007/05/04/novell-spin-deal/
http://boycottnovell.com/2007/01/19/microsoft-corrupts-term/
http://boycottnovell.com/2006/11/24/what-about-the-ec-ruling/

My newest:

# Bruce Lowry Says:
May 15th, 2007 at 5:24 pm

A quick point of correction on an issue raised in several of these comments. The Novell-Microsoft patent agreement frequently gets reported in the press as a cross-license, but it isn’t. Novell did not cross-license any patents with Microsoft. Novell and Microsoft made an agreement not to sue one another’s customers over patent issues. So we don’t have the rights to use Microsoft patents in Novell technologies, nor does Microsoft have the rights to our patents. So when I say we did this deal to take the patent issue off the table for customers, that’s all it does. It doesn’t entitle Novell to any patent protection vis-a-vis Microsoft, nor Microsoft any patent protection vis-a-vis Novell. Nor does it change any of the commitments we’ve made previously on patents, including our commitment to use our patents against anyone attacking our open source products, or our involvement in the Open Invention Network, which is designed to leverage patents to promote open source innovation. Thanks.

# shane Says: Your comment is awaiting moderation.
May 16th, 2007 at 9:13 am

So we don’t have the rights to use Microsoft patents in Novell technologies…

Justin Steinman recently indicated otherwise, care to explain?

This foundation falls into two primary categories: 1) the “covenant not to sue,” which provides customers with peace of mind when they deploy SUSE Linux Enterprise; and 2) the IP access necessary for the technical collaboration to deliver interoperability between Windows and Linux.

Dear Bruce Lowry

By definition, a “license” is a “covenant not to sue”.

If the licensee abides by the stated terms then the licensor promises not to take legal action.

That the licensor Microsoft promises not to sue the licensee Novell’s customers instead of Novell itself does not change the obvious fact that Microsoft stated terms represent a license for Novell.

Let put it in the context of another case.

Microsoft licensed patented data base technology from a company called Timeline Inc and put it in Microsoft SQL Server 7, Office 2000 other Microsoft products.

Timeline Inc license to Microsoft was a “covenant not to sue” Microsoft’s customers for *using* code developed by Microsoft that infringed on Timeline’s patents.

Note : “covenant not to sue” customers — that what a license is. How is the Microsoft/Novell agreement not to sue Novell’s customers any different?

However Microsoft chose a cheaper license option that granted Microsoft the right to develop infringing software but did not confer full use rights for the patented technology to downstream customers. ( The Washington Court of Appeal agreed with Timeline Inc
http://www.theregister.co.uk/2003/02/20/sql_server_developers_face_huge/ ). Timeline then threatened several of Microsoft’s customers who were developing on top of Microsoft SQL Server and received very large payouts.

Since those infringing customers had already agreed to Microsoft’s EULA, which included an effective agreement to recognise any patented technology that Microsoft had sub-licensed, it was a lot more difficult, if not impossible, for those Microsoft customers to challenge Timeline’s patents in court. Such agreements can limit defensive options.

Microsoft is suppling “coupons” for Novel products. What terms do those customers have to abide by to accept the deal? What about making that license/terms public?