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06.08.10

European Lesson About Novell’s Software Patents, Germany Seemingly Continues to Allow Software Patents

Posted in Europe, IBM, Law, Novell, OIN, Patents, Servers, SLES/SLED, SUN at 2:06 pm by Dr. Roy Schestowitz

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Summary: How S.u.S.E. turned from an opposer of software patents into an extension of Novell which legitimises them in Germany (where software patents continue to challenge Europe’s status quo)

Henrik Ingo from Finland writes about software patents as “a bad legacy to leave behind”. He partly refers to MySQL and to Sun, whose patent portfolio got absorbed inside another company. For about three years we’ve heard the excuses from Novell apologists who told us that Novell’s software patents are a good thing because of OIN, but now that Novell’s patent are likely to be sold, the following analysis is worth some attention:

What neither of these gentlemen pointed out is that this is exactly what happened also with Sun. It wasn’t widely mentioned in public, although Mr Piana does single out patents as his first motivation to help Oracle clear the Sun acquisition. (Personally his fear that Microsoft would be allowed to buy any piece at all of Sun was in my opinion always just completely unrealistic (for the same reasons Oracle was in trouble), but I’m willing to give him a point about patent trolls offering to buy Sun’s patents.) Other than that it wasn’t spoken about (and journalists reporting on the case were mostly nowhere near the real issues anyway) but also other FOSS personalities who took Oracle’s side did mention in private conversations with me that for FOSS in general and Linux in particular, it was absolutely vital to make sure that Sun’s Unix and other patents would not fall into the wrong hands.

A personal observation is that it seems that particularly the lawyers of our community subscribed to that way of thought, whereas the “hacker” types like Stallman of FSF, Karsten Gerloff of FSFE, Alan Cox of the Open Rights Group, etc. came out clearly on the side of us where we argued that MySQL should not have been allowed to be acquired by it’s main competitor. (I should add that within the MySQL community, essentially old MySQL AB employees and other external contributors, the party lines followed completely different logic than in the broader FOSS community, and patents played no role whatsoever in people’s opinions.)

Let’s keep an eye on Novell in the coming weeks. Those many patents it has might even be passed to pro-software patents lobbyists (if not patent trolls) like IBM, which supported Novell’s acquisition of S.u.S.E. and also the patent deal with Microsoft. As the following news article reminds us, Novell is very IBM dependent, not just Microsoft dependent.

Despite struggling through Q2 of 2010 with a US$12m drop in net income on the same period last year, Novell continues to plough optimistically forward into the mainframe market with its support for the IBM System z Series.

The 451 Group has just correctly stated that Novell “is placing less emphasis on the Linux and open source technologies” — an argument we made many times before. To quote this within context:

While the company is placing less emphasis on the Linux and open source technologies that represented the bulk of the former Open Platform Solutions business unit, open source is no less important to Novell.

Open Source was never important to Novell, but it viewed this as a marketing opportunity and failed when it sidled with Microsoft and therefore repelled many clients who liked Open Source. They just took their business elsewhere. S.u.S.E. was popular among the European crowd where it originally came from, but why would anyway pay Novell extra for software patents that make Microsoft richer? And why in Europe where those patents are not even legal? Novell dared to advertise those software patents specifically in Europe and Groklaw got hold of reports. Shame on Novell for promoting software patents in Europe (also around the time of the major directive). Novell is at least partly responsible for pushing into Europe the notion that software patents can or should be considered there.

“Software to process telephone calls [are] patentable in Germany,” shows [PDF] the president of the FFII, Benjamin Henrion. This bizarre case is predating the Siemens case [1, 2, 3, 4, 5] and even Microsoft’s latest FAT ruling in Germany. What is going on in Germany?

“Software to process telephone calls [are] patentable in Germany”
      –Benjamin Henrion, FFII
German patent lawyers drool over any patent in a field that they specialise in. The Bastian Best blog is no exception. He gives a new example from Apple, one from Google (in German), and another tidbit about Apple (also in German). For those who do not remember, Apple is a patent aggressor that even assaulted Linux with software patents. HTC is fighting back, but it surrendered to Microsoft. According to some news sites, HTC grows with an acquisition (also here). Not that it would affect the patent case, but still…

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