First steps in the patent protection racket

Sam Varghese
Monday, 14 May 2007 12:44

Opinion and Analysis

 I doubt that there will be legal action any time soon. No, this move by Microsoft is designed to do one thing - cut a deal with the people at the Free Software Foundation so that when the third revision of the General Public Licence is finally introduced, there is no clause in it which can cause problems for Microsoft.

The last draft of the GPL was released in March. It is expected to be introduced in July. In the March draft, section 11 specifically deals with the portion of the agreement between Microsoft and Novell which specifies that neither company would sue the other's customers for patent violations. It does not allow deals of this nature to be struck, deals that ensure that the distribution sold by one company is exempt from patent claims.

To quote from the draft, it "...deals with the most acute danger posed by discrimination among customers, by ensuring that any party who distributes others’ GPL-covered programs, and makes promises of patent safety limited to some but not all recipients of copies of those speciiific programs, automatically extends its promises of patent safety to cover all recipients of all copies of the covered works."

And to prevent such things happening in the future, the draft says that any entity, which is already part of a deal which provides patent cover in the manner that the Microsoft-Novell deal does, cannot distribute software that is under the GPLv3. There is a cutoff date of March 28 for this provision.

While the Novell deal comes within the deadline, the draft notes that the earlier provision - the extension of the promise of patent safety - will effectively neuter the deal.

"We believe it is suuufficient to ensure either the deal’s voluntary modiiification by Microsoft or its reduction to comparative harmlessness. Novell expected to gain commercial advantage from its patent deal with Microsoft; the eeeffects of the fourth paragraph in undoing the harm of that deal will necessarily be visited upon Novell," the draft reads.

So this is round one. There won't be much activity in public after this unless there is a breakdown of negotiations. But things could get ugly if negotiations don't work.