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An additional noteAn additional notePosted Oct 12, 2007 13:47 UTC (Fri) by corbet (editor, #1)Parent article: Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Your editor thinks that a focus on Microsoft is truly misplaced here. There's no shortage of patent trolls willing to pursue this kind of action on their own, and one would think that a Microsoft-sponsored troll would have made a point of suing Red Hat and leaving Novell alone. As it is, the fact that Novell, too, is named just calls to attention how thin the "protection" bought by Novell really is.
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An additional note Posted Oct 12, 2007 14:04 UTC (Fri) by kripkenstein (subscriber, #43281) [Link] > a focus on Microsoft is truly misplaced here [...] and one would think that a Microsoft-sponsored troll would have made a point of suing Red Hat and leaving Novell alone.
Yes, good point. The Groklaw article was a bit too focused on a Microsoft conspiracy connection for my taste. When this might be just another case of patent trolling - Microsoft gets sued all the time; no reason why Novell and Red Hat shouldn't either.
Yet, the very recent comment by Ballmer that 'Linux might get sued by patent holders' does seem an odd coincidence. The theory that he might have had foreknowledge of these lawsuits doesn't seem as far-fetched as the theory that Microsoft is actually behind them.
An additional note Posted Oct 12, 2007 14:24 UTC (Fri) by dmarti (subscriber, #11625) [Link] I agree -- MSFT's interest is for the patent trolls to keep quiet for now, so that it's easier for MSFT's lobbyists to get US-style software patents in other countries. If the trolls go nuts in the USA, politicians in the rest of the world will find it harder to get software patents through.
An additional note Posted Oct 12, 2007 15:51 UTC (Fri) by ccchips (subscriber, #3222) [Link] Not really "focus", but note: Novell, Red Hat, Apple, but not Microsoft. Seems like every software maker who got seriously into desktops is a potential target for this jerk.
Misplaced? Posted Oct 12, 2007 17:00 UTC (Fri) by dwheeler (guest, #1216) [Link] I wouldn't be so sure. Several top execs came straight from Microsoft, just before this suit was filed. Perhaps even more tellingly, Novell and Red Hat are named in the suit, while Microsoft is not. Microsoft may have a "deal" with Novell, but Microsoft has a strong financial incentive to arrange attacks on Novell by others. And of course, Microsoft has explicitly said for years that patents were how they planned to attack OSS. So we have motive, method, and opportunity; perhaps the patent troll and Microsoft are unrelated, but I would not presume it.
Misplaced? Posted Oct 12, 2007 18:30 UTC (Fri) by sepreece (subscriber, #19270) [Link] "Microsoft has explicitly said for years that patents were how they planned to attack OSS"
I would have said that they attacked by suggesting that they had IP that Linux seemed to violate, thus raising questions about whether it was safe to use Linux. I don't remember them ever saying that they would pursue those patents, though. [If I have forgotten such a statement, I apologize.]
Misplaced? Posted Oct 12, 2007 23:31 UTC (Fri) by AJWM (guest, #15888) [Link] "Using patents to attack FOSS" doesn't necessarily mean that Microsoft would use Microsoft's patents to attack FOSS.
Indeed, it would be a strategic move on Microsoft's part not to do so - a direct lawsuit by Microsoft would trigger retaliatory patent lawsuits by others, and Microsoft has something to lose there. Patent trolls don't.
War by proxy is nothing new; the superpowers engaged in it during the Cold War when the threat of nuclear retaliation precluded a direct attack. The "mutual assured destruction" of a direct patent war between two or large companies who actually produce something (vs patent trolls) has been raised before.
An additional note Posted Oct 12, 2007 17:18 UTC (Fri) by elanthis (guest, #6227) [Link] "As it is, the fact that Novell, too, is named just calls to attention how thin the "protection" bought by Novell really is."
They never bought any protection. They made a standard patent protection claim that any two tech companies making a large software cross-selling agreement would make. But hey, why ask people who know business when you can ask bigoted tech-nerds about how business deals work?
An additional note Posted Oct 12, 2007 18:01 UTC (Fri) by corbet (editor, #1) [Link] ...then those millions of dollars paid to Microsoft by Novell are buying exactly what, please? This "bigoted tech-nerd" - who has learned a bit about business deals by virtue of running a business for the last ten years - would sure like to know.
An additional note Posted Oct 12, 2007 18:20 UTC (Fri) by sepreece (subscriber, #19270) [Link] "then those millions of dollars paid to Microsoft by Novell are buying exactly what, please?"
Well, I'm just another tech-nerd, but my understanding was that part of what they bought was a promise that *Microsoft* would not sue *Novell's customers*. Since this suit doesn't involve Microsoft or Novell customers, I don't see how you can draw any conclusions about that deal from this suit.
An additional note Posted Oct 12, 2007 21:58 UTC (Fri) by tialaramex (subscriber, #21167) [Link] My understanding is that Novell get an exclusive sales relationship. Customers who are looking for something that Microsoft doesn't really do (e.g. Netware integration, or just Unix in general) can be sold SuSE for that job, without Novell spending a penny on customer acquisition.
Usually a Microsoft salesman offers a Microsoft-only deal. They won't suggest that you use products from Oracle, or Logitech, or Google, let alone Red Hat or Apple. And that sometimes loses them valuable deals. Microsoft may still make a bunch of dough from a site license for desktop Windows, but lose all the servers even though the customer would have gone with IIS, they just couldn't stomach MS SQL, or they needed a Java middleware solution and Microsoft suggested rewriting everything with DotNet and C#.
My impression was that this deal means e.g. a Microsoft salesman can include SuSE in a Windows-centric bid to customers who otherwise might not be interested because the Microsoft product offerings don't solve their entire problem. I thought one of the follow-up stories about the deal already said this had boosted Novell's sales ?
microsoft paid novell, not the other way around Posted Oct 13, 2007 18:44 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link] microsoft paid novell millions, and novell agreed to pay microsoft a small amount for each copy of SuSE sold.
microsoft paid novell, not the other way around Posted Oct 13, 2007 20:52 UTC (Sat) by corbet (editor, #1) [Link] In other words, Novell is paying a per-unit charge to Microsoft. Which adds up to millions of dollars. Are you disagreeing with that, somehow?
microsoft paid novell, not the other way around Posted Oct 13, 2007 21:33 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link] microsoft paid novell $100+m, novell will pay microsoft a small per-copy fee.
it may be that novell will sell enough copies of SuSE that the balance ends up being in microsoft's favor, possibly by millions, but that's not the case so far, and may never be the case, it all depends how many copies they sell.
but listing it as 'what else did novell pay microsoft millions for' is misleading at best.
microsoft paid novell, not the other way around Posted Oct 13, 2007 21:49 UTC (Sat) by corbet (editor, #1) [Link] Why is it misleading? What, exactly, is Novell paying for?The balance of payments is completely irrelevant. Novell is paying a tax. I don't understand why the conversation always gets so slippery every time I ask what is being paid for.
microsoft paid novell, not the other way around Posted Oct 14, 2007 4:43 UTC (Sun) by paulj (subscriber, #341) [Link] Or Novell are giving Microsoft a kick-back on each copy of SuSe MS sell, i.e. a referall fee, paid for from the margins on the unit sold. Which wouldn't be an uncommon or sinister arrangement really.
Or not?
microsoft paid novell, not the other way around Posted Oct 14, 2007 7:47 UTC (Sun) by njs (subscriber, #40338) [Link] Or not. Novell is apparently paying MS a percentage of *all* Suse revenues, including for copies that Novell sold all on their own and MS had nothing to do with -- at least as far as I can tell from the last line of their SEC filing[1], which is admittedly a bit vague.
[1] http://www.sec.gov/Archives/edgar/data/758004/00007580040...
microsoft paid novell, not the other way around Posted Oct 14, 2007 14:53 UTC (Sun) by paulj (subscriber, #341) [Link] If this agreement concerned any other two parties, ones not affected by contraversy and suspicion, most people'd conclude that if the Novell-like party were paying based on *all* their sales, that this was agreed because:
- The MS-like party are to spend money marketing Linux and Windows virtualisation /generally/
- The Novell-party should see a general increase in sales (to whatever extent) from such spending, beyond just those sales it sees in direct referrals from the Microsoft-like party.
That'd be the most reasonable explanation if it didn't involve MS..
Business deals Posted Oct 13, 2007 15:22 UTC (Sat) by tony (guest, #3654) [Link] Why not ask someone who understands business?
Oh, I understand business. I understand that big businesses are typically pitiless, underhanded, and work in their own best interest. Therefore, in every business deal, you have to ask, "What's in this for each party?"
In the Novell/Microsoft deal, Microsoft has frequently, loudly, and vehemently proclaimed GNU/Linux and other free software are vulnerable to patents. Microsoft has interest in seeing GNU/Linux die. It has *no* interest at all in seeing GNU/Linux succeed.
So, in view of that, and in Microsoft's ruthless business history, I believe this was no ordinary patent cross-licensing deal (which Novell and Microsoft had for years, anyway). In every analysis, Microsoft had nothing significant to gain.
Near as I can tell, what Microsoft got was a Microsoft proxy to crank out poison pills, such as Moonlight (an attack on web standards, poised to take on "Web 2.0" (a stupid business term)) and OOXML advocates within the free software community.
And finally, there is the reaction by Microsoft itself. Ballmer's statements after the deal were more mafia-like than business-like, implying patent doomsday for anyone who didn't sign a similar deal with Microsoft. This is not typical after a company signs a simple patent cross-licensing agreement. Also, there were reports of Microsoft sales representatives using this deal as pressure against GNU/Linux. (A friend of mine basically had his MS sales rep say, "You upgrade to Vista, everything will be safe. You go with Linux, and there's no telling what might happen.")
So, yeah. In this case, I trust the biased geeks. People who know business don't seem too bright, anyway-- back in 2000, every geek I knew saw the end of the dot-com bubble. Businessmen just kept investing.
An additional note Posted Oct 12, 2007 17:22 UTC (Fri) by ajross (subscriber, #4563) [Link] With all respect due our editor, I'm not sure. What's the motivation here for IP Innovation? Remember that patent infringement suits are actually very, very rare in comparison to patent settlements. If your business model consists solely of paying lawyers to draft contracts and filings, it makes sense to take a comparatively small cut of a target business's revenue. Actually going to court is a huge risk to these firms. If they lose, they lose not only the revenue from the target, but all revenue from the patent. So now they've gone and sued Red Hat and Novell: two companies who are required (by virtue of the license under which they received their software -- patent license fees constitute "extra conditions" under the GPL) to fight this to the death. Either they win and IP Innovation loses their patent, or they lose and have to pull the feature (virtual desktops, apparently?) out of the US versions of the distributions. In neither case does IP Innovation get paid. They can't get paid, unless Red Hat and Novell find some way around their distribution licenses. So why file the suit? It's all risk and no upside. And the linux desktop market is tiny, anyway. I smell something at work, honestly. And I'm not one normally given to conspiracy theories.
An additional note Posted Oct 12, 2007 18:23 UTC (Fri) by sepreece (subscriber, #19270) [Link] "In neither case does IP Innovation get paid."
Well, even if Novell and Red Hat stop distributing infringing systems [assuming that they are], the plaintiff would still be able to claim damages from all sales to date, probably trebled as willful infringement because the Apple suit got enough attention that they should have been aware of it.
An additional note Posted Oct 12, 2007 18:30 UTC (Fri) by ajross (subscriber, #4563) [Link] I'm not a lawyer, but I'm all but certain that's not how "willful" is defined. The test isn't whether or not the party knew about the patent, but whether they reasonably believed it to be valid. All Red Hat and Novell have to show is that the decision makers (who, remember, are free software developers -- RH/Novell just packaged what they got from Gnome) thought this was invalid after the Apple suit. Scan through the comments above and on Groklaw for a sampling of what the free software community thinks about this patent. :)
An additional note Posted Oct 12, 2007 20:47 UTC (Fri) by sepreece (subscriber, #19270) [Link] My understanding is that the the patent court begins with the assumption that patents are valid (hence the RIM situation, where getting the patents invalidated didn't help them avoid an injunction). With that bias, I would expect the court to similarly accept that knowledge of a patent was sufficient to establish willfulness. But IANAL.
Most of these patents do seem bogus. This one, if it really reaches back as far as 1984, may be harder to invalidate. Windows were relatively new, then. The inventors (as opposed to the company that owns and is prosecuting the patent) do seem to have been in roughly the right place and time, but I have no detailed knowledge on this.
An additional note Posted Oct 13, 2007 3:16 UTC (Sat) by felixfix (subscriber, #242) [Link] Yes, but willful I think has a specific legal meaning that you knew about the patent and thumbed your nose at it anyway. IANAL of course, but I suspect there is something to that. Now will they get any damages if they claim willful and can't prove that? There's a question.
An additional note Posted Oct 12, 2007 20:32 UTC (Fri) by fritsd (subscriber, #43411) [Link] Yes, but I think the point is if they had sued Microsoft instead of Novell and Red Hat, they could have got a settlement worth millions, and Microsoft would be more likely to settle instead of "battle to the death" as pp puts it.So why then do they sue those two companies which for them carries the same risk (losing the patent they use as a weapon) but much lower possible profit, compared to sueing Microsoft.
I haven't read the actual patent, is it likely that Microsoft just doesn't infringe it?
An additional note Posted Oct 12, 2007 20:55 UTC (Fri) by sepreece (subscriber, #19270) [Link] I also haven't read the patent in any detail. I think there are technical differences between the implementations and capabilities of the windowing technology in Windows versus those in X11 that *could* affect whether this patent applied, but I don't know enough about the patent to begin to guess whether that's the case.
I do agree that it seems odd to pick on the defendants they chose.
An additional note Posted Oct 12, 2007 20:29 UTC (Fri) by kripkenstein (subscriber, #43281) [Link] > So now they've gone and sued Red Hat and Novell: two companies who are required (by virtue of the license under which they received their software -- patent license fees constitute "extra conditions" under the GPL) to fight this to the death. Either they win and IP Innovation loses their patent, or they lose and have to pull the feature (virtual desktops, apparently?) out of the US versions of the distributions.
Hmm, that is a good point. So, if a patent troll holds a crucial patent - to something that if you pull the feature, your OS is useless - then Red Hat, Novell, etc. are out of options, but to stop selling Linux? (assuming they lose the fight)
If so then commercial Linux seems highly vulnerable in the US and other software-patent-granting areas (and perhaps community Linux as well, to a lesser degree). I hope I am missing something?
An additional note Posted Oct 12, 2007 22:12 UTC (Fri) by man_ls (subscriber, #15091) [Link] As somebody else has suggested above, Red Hat can buy the patent and put it in the public domain (or give it to OIN). Alternatively they can work around the patent so their product does not infringe anymore (even if they have to settle for their previous use). Or IBM and OIN and other powerful friends can convince them to forgive about the patent: even if the company has no products I bet they can be sued for a lot of things (and IBM can darken the skies with lawyers of whatever dirty hole they come out of). All of this is considering that the patent is really valid; a stronger argument is to invalidate the patent.Some day somebody will find an unavoidable patent that is valid beyond doubt and all Linux distributors are found to infringe, like "method and apparatus for writing a monolithic kernel in C" (filed in 1981), or something. That day there will be a big party at Microsoft HQ. I would bet that GNU/Linux is so big nowadays that this patent would lead to a huge patent reform. Until that moment we can only speculate, and fight software patents in Europe.
An additional note Posted Oct 12, 2007 19:48 UTC (Fri) by vblum (guest, #1151) [Link] Perhaps you're being a bit too fair here? The two MS guys joining the company recently .... stink. Following the money trail is an outstanding idea, regardless of what comes from it. There are too many people that have used convenient front businesses to push out the competition, historically, to not check. See, e.g., the scheme Thomas J Watson Senior was involved in prior to IBM (see Wikipedia).
Incidentally, a good analysis of this patent can still be done independent of the money trail anyhow. It's fine to follow both leads. Just the patent sounds like it might need a bit more time.
This one stinks. It may not even be that M$ cares about the FULL potential impact of this. It's enough that they'll aid ina scheme to expose their competition to the same nasty schemes that they've been exposed to for a while now. It makes perfect business sense.
The fact that there is that little antitrust issue agains M$ may come back to bite them here, though. I hope. The involvement of a lot of ex-M$ guy that joined the patent troll very recently should be damaging to M$, whether intended or not.
An additional note Posted Oct 12, 2007 22:14 UTC (Fri) by tialaramex (subscriber, #21167) [Link] A quick scan of the list of patent lawsuits linked by Groklaw shows that in the same period (basically seems to be early October) there were at least two or three patent lawsuits filed against Microsoft in the same court.
So far as I know that's not unusual. Most Microsoft products attract a large number of patent lawsuits. Microsoft has such a range of products in a wide variety of fields that even if they were not so prominent and so obviously wealthy they would undoubtedly attract many such lawsuits.
In theory Microsoft is pro-reform as far as software patents are concerned rather than pro-patent per se. But their lawyers (who would lose their jobs if Microsoft didn't have this endless series of lawsuits to fight) seem to get to write policy here, which is a serious mistake regardless of what you personally think about patent policy. The fox is running the hen house, and it may cost Microsoft more than it ever costs Red Hat or Novell.
An additional note Posted Oct 12, 2007 23:00 UTC (Fri) by dag- (subscriber, #30207) [Link] Jonathan,
I think you think too kindly of Microsoft to expect that Microsoft would be sticking to a 'partner' they have a deal with. :)
It would be a superb strategy (playing the devil's advocate) if they on one hand show they are kind to Linux and Open Source like they pretended with the Novell deal. And on the other hand add extra FUD and threats to Linux by having other parties (patent trolls) attack Linux and Open Source using patents.
Microsoft has the money to pay them off, Apple may have the money. But kill Open Source by unleashing the lions.
Nobody can publically point to Microsoft (as long as there is no paper/electronic trail). I wonder what Novell is thinking now. They paid one party for patent-peace (although got money in return) and it hasn't helped them.
Red Hat on the other hand is dealing with this correctly. They do not make deals with people that use maffia-tactics. But that doesn't make them any stronger.
Maybe Microsoft paid Novell 384 million dollars to sit through this attack, while Red Hat goes under ? Wouldn't that be an interesing point of view ? Maybe Novell settles for such an amount...
(At least this comment may have them think twice ? :P)
An additional note Posted Oct 13, 2007 6:58 UTC (Sat) by jfj (guest, #37917) [Link] Exactly.
Also there is a general problem that many open source people do not accept software patents. As long as developers don't care about patents the Microsoft-Novell deal is nothing.
The best way to make the MS-Novell deal real and consequently give an advantage to Novell wrt other distributions, is to show a case where open source software *is* vunerable.
First of all, they have to show that software patents
Obviously, even Novell will have to pay some minimal patent fees in this case. But think of the profits latter!
An additional note Posted Oct 13, 2007 2:21 UTC (Sat) by daniel (subscriber, #3181) [Link] "Your editor thinks that a focus on Microsoft is truly misplaced here. There's no shortage of patent trolls willing to pursue this kind of action on their own..."
Your subscriber respectfully disagrees with you, Jon. This is nothing less than a proxy war declared by Microsoft, the only possible conclusion that a reasonable observer can draw from the miraculous synchronicity of Steve Ballmer's public warning to Red Hat and the filing of the suit a few days later.
Elephant. Rug. Don't kid yourself.
Regards,
Daniel
An additional note Posted Oct 13, 2007 2:59 UTC (Sat) by sepreece (subscriber, #19270) [Link] "the miraculous synchronicity of Steve Ballmer's public warning to Red Hat and the filing of the suit a few days later"
Yeah, but how many times in the last year has Ballmer or another Microsoft leader raised the patent issue with no coincident lawsuit? And tech industry executives move around all the time. Sure, these things could all be tied together, but I think the odds are as good or better that it's just coincidence.
An additional note Posted Oct 13, 2007 3:21 UTC (Sat) by felixfix (subscriber, #242) [Link] There's also the fact that lawsuits of this kind take a while to draft, so this is not just a case of a company made bold by Balmer's inflammatory harangue and filing suit mere days later. Well, unless the previous claims had already prepared the lawsuit... But if Microsoft did have anything to do with it, there must be some kind of email or paper trail, or at least coincidental travel itineraries to dig up during discovery ...
An additional note Posted Oct 17, 2007 10:21 UTC (Wed) by daniel (subscriber, #3181) [Link] "Yeah, but how many times in the last year has Ballmer or another Microsoft leader raised the patent issue with no coincident lawsuit?"Two, maybe three, and never before with what amounts to a direct threat to Red Hat. Nowhere near enough to support the doubt you raised. As I see it, Steve Ballmer knew the lawsuit would be filed, and by extension, communicates directly or indirectly with the trolls. It's not like this would be unusual behavior for Microsoft, or perhaps you have not heard of Mike Anderer? News flash: Microsoft Bagman Mike Anderer caught red handed.
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