Given the amount of confidential information redacted from the recently published technical, business, and patent agreements between Microsoft and Novell, what is excluded from the agreements could be considered more interesting than what is.
That is especially the case when it comes to the list of excluded products. It suggests that the company has a specific problem with Wine, which enables Microsoft’s Office applications to run on Linux unchanged, and Open-Xchange, an alternative to Microsoft’s Exchange collaboration server.
In order to make sense of the mention of these projects, it is necessary to cut through a certain amount of legalese, starting with the fact that the agreement extends to ‘covered products’, which means all products and services sold, licensed, supplied, distributed or otherwise made available except ‘foundry’ (third party) products, ‘clone’ products, and other excluded products.
A clone products is defined as one that has the same or substantially the same features and functionality as a then-existing product or the same or substantially the same user interface or implements all or substantially all of the Application Programming Interfaces of the existing product.
The agreement states, however, that products already available from each party before the date of the agreement, November 2, will not be considered clone products, and may therefore be covered products.
All well and good, apart from the fact that that distinction does not apply to Wine, OpenXchange, StarOffice and OpenOffice which are specifically named and excluded even if they were already available from Novell before the agreement date.
The fact that those projects/products are mentioned by name is particularly interesting given Microsoft’s recent claim that open source software infringes 235 of its patents. The company recently claimed that the Linux kernel infringes 42 Microsoft patents, while Linux graphical user interfaces infringe a further 65, OpenOffice.org 45, email programs 15, and assorted open source software, another 68.
While OpenOffice would appear to be in its sights, Novell has clarified in a statement that the open source office application suite is, in fact, covered by the patent covenant. StarOffice is Sun’s implementation of the OpenOffice code base, and could therefore be considered a ‘foundry’ product. The same could also be said of Open-Xchange, produced by the company of the same name.
Novell spokesperson Bruce Lowry made this statement on the company’s blog yesterday: Certain products available before November 2, 2006, however, are automatically covered under these covenants, regardless of whether or not they have the characteristics of an ‘Excluded Product’.
The reference in the patent cooperation agreement to OpenOffice simply means that it does not qualify for this automatic coverage. It does not mean it is not covered by the covenants, he wrote. As we jointly stated with Microsoft in November, OpenOffice is covered under the patent cooperation agreement.
Wine, which is an implementation of the Windows API on top of X OpenGL and Unix, is a community-led project and comes in for not one, but two mentions in the Microsoft/Novell agreement.
A section related to the parties’ distributors being released from patent infringement claims states: The parties… irrevocably release the direct and indirect Distributors of the Parties from any liability for Patent infringement arising on account of using, importing, offering for sale, selling, licensing, supplying, distributing, otherwise making available, or promoting the commercialization of the Parties’ products and services (including Excluded Products) prior to the Effective Date, provided the foregoing release does not apply to Wine or to any product for which such other Party did not receive Revenue directly or indirectly.
Does that mean Microsoft has the Wine project in its patent sights? The company did not respond to requests for clarification by press time.
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.
The two companies also agreed to release each other from any patent infringement liability arising prior to the date of the agreement.
