05.30.07
Gemini version available ♊︎Novell Licensed MS Patents for Virtualization
It appears that Matthew Aslett has put his finger on at least one bit of Patent IP that Novell has licensed from Microsoft, as well as a little bit about what the deal was really about.
In the meantime, the publication of the agreements also sheds some light on the suggestion that the patent cooperation agreement was necessary for the technical and business collaboration agreements to have occurred.
The patent deal is listed as a pre-requisite for both the other deals, while the technical collaboration agreement was also a pre-requisite for the business collaboration agreement, placing the patent deal at the center of the whole deal.
While the patent covenant included an agreement from each party not to sue each other’s customers, there was also a limited patent deal between Microsoft and Novell, as previously reported. According to the technical collaboration agreement, that patent deal related to Novell getting a free pass on patents related to the HyperCall API specification in order to make SLES run on Microsoft’s Viridian virtualization hypervisor.
I had said the other day that Microsoft is indeed very disturbed by Wine, as is evidenced by the non-redacted portions of the agreement, because it allows users to run their Office toolset without running (and paying for) Windows. Part of the Microvell deal is about virtualization, and keeping Windows relevant and installed by using legal posturing and FUD, which Novell is all too happy to assist with since they are in the unique position to benefit from Microsoft’s FUD campaign against Linux.
So, have a look at the technical cooperation agreement (S3 & S4 are most interesting). Already, GPL fans who are familiar with the Binary Driver debate will note the use of the term "shim".
(c) Development of the Novell Shim. Microsoft hereby grants to Novell a non-exclusive, non-assignable, non-transferable, royalty-free fully paid-up license
(i) under (A) Microsoft’s trade secrets and copyrights to internally use and reproduce the Microsoft HyperCall API Specification for the sole purpose of developing the Novell Shim; and (B) ***, under Microsoft’s trade secrets and copyrights (to the extent the Novell Shim is a derivative work of the Microsoft HyperCall API Specification), to ***; and
(ii) under Microsoft’s Necessary Claims, to (A) make and use the Novell Shim in Source Code and Object Code form, and (B) ***.
If and when Microsoft makes an implementation license for the Microsoft HyperCall API Specification publicly available, then Novell may enter into such license to obtain any additional rights that may be available thereunder.
This does give some more context to Stafford Masie’s statements at CITI regarding how one aspect of the deal was that Microsoft and Novell were teaming up to go after VMware.
(a paragraph or two before it cuts off.)
…virtualization is very very key, customers want to utilize Linux as either a host operating system with Microsoft as a guest operating system, or vice versa, and yes wea re going to support the XEN technology there, the XEN hypervisor technology, Microsoft is going to support it too. Yes, there is a competitive angle there, yes we’re coming at VMware yes yes yes we are, ok thats part of it because but we’re doing it in an open source way, so were going to support the XEN technologies in our server platforms and togther collaborate and ensure it works properly, supported properly, etc
Note that this is a "non-exclusive, non-assignable, non-transferable, royalty-free fully paid-up license", so this is not the reason that Novell has agreed to pay Microsoft royalties on open source software shipped under the agreement.
Novell is paying Microsoft royalties in exchange for a right-to-use license for their customers, just no one is quite sure what it is of Microsoft’s that they have a right-to-use.
ᶃ Gemini Space
This post is also available in 
Content is available under CC-BY-SA
Roy Schestowitz said,
May 30, 2007 at 2:52 pm
There’s more on this here:
“This means that Microsoft can still sue individual SUSE Linux customers who are using products designed to replicate Microsoft products and that also infringe on Microsoft’s patents.”