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Issue Date: July 2007

Microsoft patent covenants cause confusion

July 2007
Matthew Aslett

When Microsoft announced the first of its patent interoperability agreements with Novell in November 2006, one of the major claims made in favour of the patent covenant agreement was that it would give customers peace of mind and ensure that they did not have to worry about issues such as intellectual property infringement.

"Customers told us that they wanted us to find a way to address the patent issues directly among ourselves in the industry, so they would not have to figure out how to deal with these things instead," commented Brad Smith, Microsoft general counsel, at the announcement.
Eight months, several further patent deals, and a new version of the GNU General Public License later, and the promise of simplification for customers is a hollow one. In fact, Microsoft's patent covenants have arguably made things more complicated for Novell, Linspire, and Xandros Linux users.
Microsoft's recent insistence that it will not be bound by version three of the GPL demonstrates the conundrum that faces those businesses that have signed up to SUSE Linux Enterprise via Microsoft distribution of subscription certificates.
"Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3," Microsoft stated.
In response to this, Novell released its own statement maintaining that: "For those customers who will obtain their Linux via a certificate from Microsoft, Novell will provide them with a regular SUSE Linux Enterprise Server subscription, regardless of the terms of the certificate provided by Microsoft."
So does that mean those customers are covered by Microsoft patent protection or not? Or is just the GPLv2 code covered? Probably best consult a lawyer.
Similarly, when Linspire entered into its interoperability and patent peace deal with Microsoft in June, it noted: "The patent covenants provide customers with confidence that the Linspire technologies they use come with rights to relevant Microsoft patents."
Not all the Linspire technologies are covered, however. Microsoft's covenant to Linspire customers makes it clear that any GPLv3 software (which includes a growing number of projects, including the Samba file/print interoperability project) is excluded from this list.
Where does that leave Linspire with regards to GPLv3 code? What about its customers? Can they implement it without infringing Microsoft's intellectual property or not? Another one for the lawyers.
Curiously, Microsoft's covenant to Xandros customers, struck following their deal in early June, but updated on the same day as the Linspire covenant, makes no such reference to GPLv3.
So does that mean Xandros customers will get protection for GPLv3 code should it be distributed by Xandros? If so, does that then automatically pass to other GPLv3 users, as the Free Software Foundation has suggested?
Another one for the lawyers.
While the Xandros customer covenant makes no reference to GPLv3, it does point out that Xandros customers in Brazil, Russia, India, and China are not covered by the covenant. So if you are a US company with a subsidiary in one of those countries, are your users covered or not?
And these patent agreements were supposed to reduce the intellectual property burden on customers?
Compare the strategy taken by Microsoft with IBM's recent patent covenant not to assert its patents against developers using 150 open standard specifications, including XML, WS-*, UDDI, SOAP, and the OpenDocument Format.
IBM's covenant is simple: it will not sue anyone for intellectual property infringement related to those patents unless someone sues it, or a third party, for intellectual property infringement related to those patents.
Then there is Oracle's licensing agreement with the Open Invention Network, formed in 2005 to protect Linux from patent threats. By agreeing to a royalty-free license to the OIN patents, Oracle also agreed not to assert its patents against the Linux operating system.
So if you can avoid suing anyone for patent infringement related to those 150 standards, you are safe from IBM, and if you are using any form of Linux, you are safe from patent infringement claims made by Oracle.
Now, that sounds like peace of mind.

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