The two companies announced their patent deal in November 2006 as part of a wider interoperability effort but described it as a covenant not to sue each other’s customers in order to avoid falling foul of the GNU General Public License used for Linux.
The deal also included an agreement that gave Novell engineers access to Microsoft code, however, according to the company’s director of marketing for Linux and open platforms, Justin Steinman.
In order to deliver the interoperability between Novell eDirectory and Microsoft Active Directory, as well as the bidirectional virtualization between Windows and SUSE Linux Enterprise, Novell required sanctioned access to Microsoft’s code in order to develop open source interoperability without violating Microsoft’s intellectual property, Steinman said in request for comment after it emerged that there was a direct IP agreement between the two companies.
The Novell-Microsoft agreement is about bridging the worlds of open source and proprietary software, and in order to build this bridge, we’ve had to do several unique things, including signing an intellectual property agreement that would let Novell’s engineers get a look at some of Microsoft’s proprietary code, he said.
Microsoft and Novell had previously described the intellectual property side of the deal as a patent cooperation agreement that was designed to give customers peace of mind, and had no direct agreement between the two companies.
In a list of questions and answers aimed at the Linux community, Novell stated: Our agreement with Microsoft is focused on our customers, and does not include a patent license or covenant not to sue from Microsoft to Novell (or, for that matter, from Novell to Microsoft).
It also maintained: The patent agreement does not cover the development activities of Novell or Microsoft, and Novell has no plans to changes it development policies relating to patents.
It was this fact that led the Free Software Foundation to declare that it was not in violation of the GPL. What has happened is, Microsoft has not given Novell a patent license, and thus, section 7 of GPL version 2 does not come into play, said FSF chairman, Richard Stallman, in late November.
Microsoft also promised not to sue contributors to Novell’s openSUSE development project, and it could this part of the agreement that gave Novell engineers sanctioned access to Microsoft’s IP. Neither Microsoft nor Novell had returned requests for clarification by press time.
In his statement Steinman suggested that access was granted to Novell’s engineers via the original deal, rather than another agreement, however.
Since we announced the Novell-Microsoft agreement in November, we’ve always said that the intellectual property agreement provided a foundation for the interoperability between Windows and SUSE Linux Enterprise, he stated. 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.
Steinman also insisted that Novell had not hidden details of the IP access agreement, stating that for better or worse, the community and press at-large have focused on #1.
At the time of going to press neither Novell nor Microsoft had responded to requests to clarify whether the intellectual property access agreement was separate to the covenant not to sue customers.
