I usually listen to The Adam Carolla Show - which is great by the way,  check it out – and it recently picked up Bing as a sponsor. This means the host usually does a short “live read”  where they read ad copy about the product (or in Adam’s case he may go off on a crazy rant tangent in the middle of the ad).

The funny thing I noticed: “Microsoft” is never mentioned. It’s all copy about a “decision engine” or a “next-generation search engine” or similar, but it’s been about a week or so and you’d never know by listening that Bing was from Microsoft.

It just makes me wonder if Microsoft realizes its brand is so bad that it is intentionally downplaying the name.

According to my (on-going and slip-shod) research, here’s some speculation on exactly what patents Novell is selling to Microsoft.

What patents are for sell?

Only a number (882) is given in the SEC filing, so we don’t know for sure. But, we can look at patents assigned to (and applied for by) Novell, and those companies Novell has acquired to get a picture of what patents Novell owns.

Novell proper

• Novell: 462 patents
• Novell: 287 applications

Companies Novell has acquired (and so probably owns the patents):

• 1986 – Santa Clara Systems: 0
• 1986 – Cache Data Products: 0
• 1987 – Softcraft: 0
• 1988 – CXI: 1 Patent
• 1989 – Excelan: 0
• 1991 – Digital Research: 0
• 1992 – International Business Software: 0
• 1993 – Unix System Laboratories: 0
• 1993 – Serius
• 1994 – WordPerfect: 3 Patents
• 1999 – Netoria: 0
• 1999 – Ukiah Software: 5 patents
• 2000 – JustOn: 0
• 2000 – PGSoft: 0
• 2001 – Callisto Software: 0
• 2001 – Novetrix: 0
• 2001 – Cambridge Technology: 5 patents
• 2002 – SilverStream: 6 patents
• 2003 – Ximian: 0
• 2004 – SUSE Linux: 0
• 2004 – Salmon LTD: 0
• 2004 – Commerce One: 6 Patents
• 2005 – Tally Systems : 2 Patents
• 2005 – Immunix: 0
• 2006 – e-Security: 0
• 2006 – Red Mojo: 0
• 2007 – Senforce: 1 Patent
• 2008 – SiteScape: 0
• 2008 – PlateSpin: 0
• 2008 – Managed Objects: 0
• 2009 – Fortefi: 0

Novell Subsidiaries

• JGR Acquisitions: 2 Patents assigned to them, and known to have bought 39 Commerce One patents.

Assuming (in order of safe-assumption-ness) all those applications are approved, none overlap with the “patent” list, and all those acquisition patents are correct and owned by Novell that gives us 811 patents. (Counting only 39 Commerce One patents in total.)

Still a bit short from the 882 number given in the SEC filing, but of course not only could I have missed something, but Novell (or a company it acquired) may have bought patents somewhere along the line.

The basic point to make here I think is that Novell will be selling every patent it owns. I don’t think it’s a case of “which Novell patents are up for sale”, they all are. The question is “which Novell patents might be used by Microsoft against Linux (and other competitors, for that matter)”.

A further note of interest, the word “patent” in this deal is a bit broader than simply a patent at the USPTO. As defined in the SEC documentation:

“Patents” means domestic and foreign patents and patent applications, industrial and utility models, industrial designs, petty patents, patents of importation, patents of addition, certificates of invention, and any other indicia of invention ownership issued or granted by any Governmental Entity, together with all reissuances, divisionals, continuations, continuations-in-part, revisions, renewals, extensions, and reexaminations thereof, and any identified invention disclosures, and moral and economic rights of inventors in any of the foregoing.

So, there may be some instruments there a bit outside of a simple patent number. Even so, this doesn’t change the fundamental analysis here: Novell’s selling what its got, and what its got is for sale.

OIN Patents

It seems to me that patents are either “sold” or “donated” to the OIN, making OIN the new owner, which in turn licenses them out. If this is the case then those patents given to the OIN by Novell are not going to Microsoft, because OIN owns them now, not Novell.

Here is a Google Spreadsheet I made with all the patents OIN claims to own, along with the patent assignee. And here are the patents that OIN claims to own that I believe came from Novell:

3 patents that OIN owns that were assigned to Commerce One:

• 6751600
• 6542912
• 6591260

These are 2 from JGR Acquistions, Inc., a subsidiary of Novell:

• 6993506
• 7036072

It’s morbidly amusing, then, that the end score for Novell if counted in patents is something like: Linux – 5, Microsoft – 882 .

(Novell helped buy some of those Microsoft patents as well, so I guess if you are feeling generous, give them another 6 or so points, though Linux – 11, Microsoft -882 isn’t much better).

(Also, some additional patents may well have came from Novell, and it’s not obvious from the limited information I have, but you get my point. I’m just so damned blinded by zealotry that I feel the need to ruin a great bit by adding in disclaimers and clarifications to make sure an honest opinion is presented. That’s just the sort of rage without regard to the facts we engage in here.)

UNIX Copyrights

Novell has since released a statement that the UNIX copyrights will remain with Attachmate-Novell after the sale. In my opinion, this doesn’t matter, because a big outcome  of the SCO case was not just proving that Novell owned the copyrights, but that Linux didn’t violate them anyway.

The Baystar-SCO gambit (and related chicanery like the disgraceful book of lies Samizdat, from the shill-center Alexis de Tocqueville Institution funded by Microsoft) was all an ultimately failed attempt to show Linux violated UNIX copyrights somehow.

Microsoft has already tried to attack Linux via this route, and it yields nothing. In summary, Novell is being allowed to keep the UNIX copyrights because they have no worth to Microsoft.

Technical Business

The always excellent and informative The Standards Blog has a detailed analysis of what we know so far from a legal/business perspective. I’d also note that they are in agreement with my assessment of the UNIX copyright value:

Does this new disclosure have any implications to Linux? The answer should be no, since copyrights cover the actual code, and not any underlying “inventions” that might be infringed by Linux (which is what patents cover). Despite strenuous efforts, SCO was never able to prove that Linux included any UNIX code, and therefore ownership of the UNIX copyright would not provide any rights against Linux developers, distro vendors or users.

I suggest reading the blog, because it goes into the business structure that will be in place after the deal, including some thoughts on how that might impact operations.

More to come

Novell recently filed an Agreement and Plan of Merger with the SEC, and more detailed bits are sure to come.

You can get an RSS feed of Novell’s filings with the SEC here.

Novell also announced it has entered into a definitive agreement for the concurrent sale of certain intellectual property assets to CPTN Holdings LLC, a consortium of technology companies organized by Microsoft Corporation, for $450 million in cash, which cash payment is reflected in the merger consideration to be paid by Attachmate Corporation.

… almost precisely as Your Humble Host predicted back in May, Microsoft has organized a thin front organization to pick up whatever pieces they think will be useful against Linux. Novell, as has been standard practice for them since at least 2006, has once again chosen to do whatever is best for Microsoft.

In this case, it is selling some 882 patents for $450 million in cash, according to the SEC filing:

Also on November 21, 2010, Novell entered into a Patent Purchase Agreement (the “Patent Purchase Agreement”) with CPTN Holdings LLC, a Delaware limited liability company and consortium of technology companies organized by Microsoft Corporation (“CPTN”). The Patent Purchase Agreement provides that, upon the terms and subject to the conditions set forth in the Patent Purchase Agreement, Novell will sell to CPTN all of Novell’s right, title and interest in 882 patents (the “Assigned Patents”) for $450 million in cash (the “Patent Sale”).

The Patent Purchase Agreement contains representations and warranties of the parties, including with respect to Novell’s title to the Assigned Patents, existing licenses and rights with respect to the Assigned Patents, restrictions on rights to the Assigned Patents, the validity and enforceability of the Assigned Patents and the equity commitments of the members of CPTN to fund CPTN in an aggregate amount equal to or exceeding $450 million.

Business Insider has already captured the deal’s essence in a piece entitled “Today’s Novell Deal Helps Microsoft Continue Linux Fight“:

The deal helps Microsoft in its decade-long fight against open-source operating system Linux in two ways.

First, it keeps a Microsoft competitor from buying Novell’s SUSE Linux implementation. VMWare was looking at buying SUSE so it could sell a top-to-bottom software stack that would compete directly against Microsoft’s Windows Server and its built-in virtualization technology. This was a major fear in Microsoft’s server group, according to my sources there.

Second, although the companies didn’t say exactly what patents were included, it seems likely that some of them are related to SUSE Linux. If so, these patents will give Microsoft further ammunition to sign cross-licensing deals with companies that sell other products based on Linux. And those licensing deals will continue to raise questions in the mind of potential Linux customers.

Please note Business Insider is not some “freetard” blog. This is rational, business-oriented analysis. Remember that as Team Apologista winds up the spin and attempts to downplay the traitorous nature of this odious deal: the Patent Purchase Agreement portion of this deal is 100% beneficial to Microsoft in its fight against Linux. It strengthens Microsoft’s claims that it owns so-called “Intellectual Property” that entitles Microsoft  to demand licensing fees or other tribute in order for someone to run Linux.

Also note there are almost certainly other technologies and/or markets that Microsoft hopes to gain leverage in with these patents – but the essence is how much it bolsters Microsoft’s war chest against Linux. Don’t be distracted by claims that Microsoft has its eye on some other technology (ala Platespin). True as a side benefit, perhaps, but the real importance to Microsoft is – and has always been: to kill Linux, and, failing that, to hinder adoption of Linux, and, failing that, to require payment for the privilege of running Linux.

Questions that need answering

Which 882 Patents, exactly? Knowing which patents are in play here would go part of the way to predicting (and therefore defending) against future Microsoft claims against Linux.

What happens to any OIN patents? My impression is that the OIN “owns” the patents, so I don’t expect any change in those patents, but it would be re-assuring to confirm that.

What are the other companies in CPTN Holdings, LLC? I don’t doubt for a moment that this is 99.9999% Microsoft and .00001% Microsoft cronies assembled solely for this deal, but I’d still like to know more about the organization’s composition, history and activity.

Are there any anti-trust or other legal obstacles to the patent sale? In a logical world, Microsoft would not be able to both hold Linux up as a competitor (so as to deflect anti-trust criticism) and simultaneously attempt to extract licensing fees from use of their “competition”. However, what is legal and what is logical rarely meet, so let’s see if the regulators give this a once over and what they say. I don’t expect anything to come from this front.

What happens to Microsoft’s “Covenants”? Microsoft and Novell had some exclusive arrangements (which Novell loved to talk out of both sides of its mouth about). The Covenant to Downstream Recipients of Moonlight, for example, is specifically tied to Novell in a dozen places. The “special relationship” Novell enjoyed with Microsoft is mentioned in the SEC document, but nothing about it extending or continuing (or ending for that matter):

Information Regarding Certain Relationships

Novell and Microsoft are parties to a Business Collaboration Agreement, a Technical Collaboration Agreement and a Patent Cooperation Agreement that collectively were designed to build, market and support a series of new solutions to enhance the interoperability of Novell’s products with Microsoft’s products.

What happens to Mono? Miguel de Icaza is already trying to calm the waters, claiming “Mono continues as-is, but our paychecks will come from Attachmate instead of Novell“. I’d argue that changes are inevitable – that’s what happens when you get bought out; the new owners like to change stuff up – but I’m also interested in seeing if Microsoft will strike a no-sue secretive deal with Attachmate, so Team Mono can go on operating with the same cavalier attitude they did when with Novell.

I wouldn’t be surprised, because the Novell-Microsoft deal could not have been more beneficial to Microsoft: after years of dividing the FLOSS community and spawning a herd of “Open Source Advocates That Defend Microsoft” – Novell comes out the other end dead, Microsoft comes away with 880+ patents and a host of people promoting its technology and standards (both real and de facto) in the Open Source community. Why not see if they can continue that winning streak with Attachmate?

I guarantee you Miguel de Icaza and the rest of Team Apologista is up for it.

How will Team Apologista spin this? Mostly for the lulz factor, but I’m interested in seeing the spin. I suspect there will be two major lines of defense:

• Mono/OpenSUSE are Open Source, so they are “bigger” than who owns what. (Like Oracle buying Sun didn’t affect OpenOffice.org and Canonical has only minor influence on Ubuntu, I’m sure.)
• Microsoft is buying patents for defensive purposes. (Like the same patent can’t be used both offensively and defensively).

For additional lulz, one could note the jackholes that expressed such delightful schadenfreude when Oracle bought out Sun, aren’t crowing about Novell dying and selling nearly 900 patents to Microsoft on the way down.

Who is Attachmate? By this I mean we need to know more about Attachmate’s business strategy and philosophy. They say they will continue to support SUSE (and I assume, at this point, OpenSUSE) – so we will see. After checking out their site and searching Google, I don’t see anything that suggests Attachmate is pro-Open Source (or even interested in Open Source), so that is a bit troublesome. Still, I’ll reserve speculation on this point, because I need to know more about the company.

More to come on this, I’m sure…

Android has a patent fee. It’s not like Android’s free. You do have to license patents. HTC’s signed a license with us and you’re going to see license fees clearly for Android as well as for Windows.

http://tech.fortune.cnn.com/2010/10/03/ballmer-android-aint-free-microsoft-gets-paid/

And some desillusioned people still believe Mono/Moonlight would be free (and safe from Microsoft) if it ever would have the same sucess as Android…!

The lawsuit Microsoft filed against Motorola and its use of Google’s Android phone software is awfully familiar.

Microsoft used the same tactic against Linux when the open-source software reached critical mass in the data center and threatened to derail the growth of Microsoft’s server business seven years ago.

After name-calling failed to slow Linux, Microsoft started warning big companies that the free software wasn’t really free. It also said companies should take into account the potential cost of patent and licensing litigation around open-source products.

Of course, I for one am not a bit surprised to see Microsoft playing the patent FUD game again.

What I would like to draw attention to is how silent Team Apologista gets every time Microsoft pulls out the patent card against Linux, in stark comparison to how vocal they are whenever someone suggets Microsoft might pull out a patent card against Linux.

Dare to mention one may have patent-related concerns about Mono or Moonlight, and watch Team Apologista come storming in with tired half-truths and the same old debunked defenses – but see reported news of Microsoft using patents aggressively yet again and it’s nothing but crickets chirping from Waltham’s Warriors.

I’d also like to note that despite Team Apologista’s desperate and transparent attempts to paint people as “zealots”, “freetards” and so on, that anyone even casually following Microsoft with a shred of integrity must acknowledge that Microsoft has in the past and continues to this very day to use FUD — including patent-based FUD — against Linux. I suppose Seattle Times and the article’s author, Mr. Brier Dudley, are “unreliable sources” or “zealots”? Or, perhaps – just perhaps – they are simply reporting the facts?

Pointing out facts is not zealotry. Reality is what it is: Microsoft has always been and continues to be an enemy of Free Software in general, and Linux in specific.

LibreOffice

LibreOffice is the “rebranding” of OpenOffice.org under the umbrella of the newly formed The Document Foundation.

The purpose of The Document Foundation is to be an “independent self-governing meritocratic Foundation”, and although it doesn’t come right out and say it, the main purpose seems to be to move OpenOffice.org out from under the control of Oracle.

This has to be a good thing, because Oracle has certainly proven they can not be trusted as Free Software shepherds. OpenOffice.org was a very successful and important project while under Sun, but its future - like every other Free Software projects that were under Sun - became questionable under Oracle.

rms comments

I was pleased to see a quote from rms in the press release:

I’m very pleased that the Document Foundation will not recommend nonfree add-ons, since they are the main freedom problem of the current OpenOffice.org. I hope that the LibreOffice developers and the Oracle-employed developers of OpenOffice will be able to cooperate on development of the body of the code.

This is an important point, because I note that The Document Foundation is “open to any individual who agrees with our core values and contributes to our activities”. I couldn’t find a listing of these “core values”, perhaps because the Foundation is so new, but I hope they take the time and effort to firmly state the dedication to Free Software within.

We’ve all seen how – even in Foundations with clear commitments to Free Software – commercial interests work overtime to play down or ridicule Free Software. (Hello, GNOME Foundation.) I fully expect the same thing to happen within The Document Foundation, the office suite being such a crucial application space, so I think the “core values” need to be clearly spelled out.

(I will withhold comment on the impact that having several Novell people within the Foundation might have on the adoption of “Free Software” as a core value.)

overall picture

As usual Andy Upgrove, over at The Standards Blog, hits the nail on the head:

Recently, we have seen Oracle acquire companies with properties of great community significance (e.g., MySQL, OpenOffice, Java, and more), and Novell, custodian of OpenSuse and vendor of Novell Linux (one of the three most successful Linux distributions), has been put in play by a private equity firm. What this highlights is the reality that even companies with excellent credentials as stewards for open source projects cannot control the future of these not so public after all projects when they are themselves acquired.

I fully agree with this point, even if I disagree with the implication that Novell has “excellent credentials”.

The larger point is that commercial entities are not, in fact can not be, fully trustworthy stewards of Free Software, because their ultimate loyalty lies in making a profit. If faced with a choice between upholding the values of Free Software and making a dollar, they must choose the dollar. That is their priority, their “fiduciary duty”, their “financial obligation”.

Independent foundations or non-profit organizations are therefore the best entities to oversee large Free Software projects.

Case in point – Microsoft OuterCurve

By extension, then, independent foundations and non-profic organizations represent the most attractive attack vector for those hostile to Free Software. See, for example Microsoft CodePlex Microsoft OuterCurve, where you can get spin from Executive Director Paula Hunter like:

What distinguishes us from Eclipse and Apache is that we’re license agnostic and platform agnostic

“Platform agnostic”? Let’s look at the 6 Microsoft CodePlex Microsoft OuterCurve approved “galleries”:

• Orchard – ASP.Net (Microsoft Windows)
• MVC Contrib – ASP.Net (Microsoft Windows)
• ASP.Net Ajax Library – ASP.Net (Microsoft Windows)
• Web Forms MVP Project – ASP.Net (Microsoft Windows)
• CoApp Project – Microsoft Windows
• Network Monitor Parsers – Microsoft Network Monitor (Microsoft Windows)

Yes, indeed: real platform agnosticism there.

I also love how Ms Hunter says:

And to be direct, no, we are not distancing ourselves from Microsoft; we are very pleased with our relationship with them and their continued support of the foundation.

Of course you aren’t distancing yourselves from Microsoft –  you don’t have anywhere to distance yourselves to - every single project you have is based on a Microsoft platform!  Your relationship with Microsoft is your entire and sole reason for existing.

There is one bit of truth on the Microsoft CodePlex Microsoft Outercurve site:

We have changed our name, but not our mission.

Believe that.

http://martin.iturbide.com/?page_id=114