Answering Questions

First, you may want to read my stunningly well-written post “What Patents is Novell Selling?” Make sure you have a pencil in both hands.

The main conclusion I draw patent-wise is that we can easily find Novell has a little over 800 patents, and we know 882 are for sell, so I believe Novell is selling all (or at the very least, an overwhelming majority of) its patents.

Let me respond to some of the feedback I have received.

Matt Asay Says Novell Has 2000+ Patents

My thanks to Roy Bixler for mentioning this from Matt Asay:

While this IP doesn’t include the Unix copyrights, it does include 882 of Novell’s roughly 2,000 patents which almost certainly involve IP surrounding WordPerfect and other technologies that give Microsoft more cause for sabre-rattling against open-source projects like OpenOffice.

On one hand, you might think Mr. Asay is in the position to know, having once been a Novell employee. On the other hand, it would be neither surprising nor rare for Mr. Asay to get a fact or 17 incorrect in an article.

Here’s the problem with the 2,000 number:

1. We can’t find anywhere near that from searching.
2. Novell never claimed to have anywhere near that number (that I can find).

For example, check out the most recent Internet Archive copy of the page where Novell used to list all its patents. Novell used to constantly refer to this page in almost all of its documentation as where to find a list of Novell patents.

The archived copy is from Oct. 27, 2007 and lists 325 patents. Figure ~150 patents granted and ~280 applied for in the next 3 years, and those numbers seems to work well with the ~800 figure.

Where did the other 1200 patents come from?

You Didn’t Count International Patents

Fair enough, but not only is there no good way to do so comprehensively, but even so, I don’t think it will matter.  Still, let’s give it a go:

There is the WIPO PatentScope search, which gives us 30 additional Novell Patents:

• Novell, Inc: 28 Patents
• Novell Inc: 2 Patents

This search covers ARIPO (17 or so African countries), Cuba, Argentina, Korea, Mexico, Singapore, Viet Nam, South Africa, Israel, Morocco, Spain, Brazil and Columbia.

So, let’s throw those into the count as well. Total now: 841 Patents.

The difficult to use Japan search gives 3 patents. It’s easier to just list the patents than the search:

• 2002-288139
• 2002-033998
• 2002-033771

Let’s add those in as well. Total now: 844 Patents.

The European Patent Office search results are quite interesting. There a Worldwide search for  “NOVELL INC [US]” gives us 886 results.

So, no matter how you cut it you are still around 882 patents.

Novell is selling what its got, and what its got is for sale

Again, the only rational conclusion is whatever Novell has is up for sale. In fact, if you read the terms of the deal, Microsoft can buy Novell’s patents even if the deal with Attachmate falls through:

In addition, CPTN may also elect to continue the Patent Purchase Agreement in the event that the Merger Agreement is terminated for any other reason than Novell’s receipt of an acquisition proposal for the entire company that it deems to be a superior proposal to the Merger, in which case the Patent Purchase Agreement will remain in full force and effect and references in the Patent Purchase Agreement to the Merger Agreement shall automatically be deemed to be of no force or effect.

This basically means that unless someone comes in outbidding Attachmate by over $60 Million dollars (the termination fee Novell would have to pay Attachmate for going to another bidder), those patents are going to Microsoft.

Remember, the only way this deal can happen is because Microsoft is throwing in the $450 million for the patents. Without that, the deal is a non-starter. Is someone out there prepared to argue, then, that Microsoft is going to leave 1200 some-odd patents on the table?

The (Lack of a) Future for Novell

Novell is done for – it is in effect being bought by Attachmate by proxy (for Microsoft and Elliot Associates) for about $700M. ($2.2B, less $1B Cash-on-hand, less $450M from Microsoft)
Consider the players:

Elliot Associates has no interest in Novell as a software and/or Linux company – its interest is in the  $1 Billion in cash and short-term securities Novell has. No help to Novell’s future there.
Microsoft has no interest in Novell beyond the patents it will acquire, and perhaps some minor lip service/PR use. No help to Novell’s future there, and certainly no help to SUSE/OpenSUSE.
Attachmate has never expressed interest in Open Source (and only mild interest in Linux in general). They initially state they will be splitting Novell into 2 separate divisions.
That’s the most important point: if Novell can’t make Novell work, what exactly makes anyone think Novel-Under-Attachmate is going to work?

Attachmate, as a company, brings no new technology, management or rainmakers to Novell. Novell as a Linux/Open Source entity gains absolutely nothing from the Attachmate-Novell deal. In fact, Novell loses a lot:

• Novell loses nearly all its patents.
• Novell loses nearly all its image of being a stable choice.
• Novell loses what little SUSE/old-school Novell synergy it had.
• Novell loses even more of what little Open Source/Linux credibility it had left.
• Novell loses the ability to independently decide to operate in an Open Source-friendly manner.
• Novell loses the ability to pretend like its flavor of “interoperability” is a desirable business model.

In return, Novell gains nothing. There is not one single aspect of Novell’s positioning in the Linux or Open Source worlds that is improved by Attachmate’s ownership.

The only possible upside is the inevitable changes in management that will come, and that is only because it is not possible for any living thing to manage Novell more ineptly than its current management.

Nothing Will Change?

Furthermore, despite wishful thinking that “nothing will change”, a moment’s thought reveals how idiotic such rose-tinted non-thought is: if nothing changes, than all Novell will do is decrease in value. Why would Attachmate bother to buy out a failing business, and then not change anything?

Even if Attachmate intends to hold on to Novell for the long-term – a highly questionable proposition in itself – the only way to do so and become profitable is to radically change the way Novell operates. If “changing nothing” worked, Novell never would have found itself on the auction block.

If you want to take the view that Novell will continue on (and this means for SUSE and OpenSUSE as well), you have to present some things that Attachmate brings to Novell, some ways that Attachmate will change how Novell did business, that make that approach viable.

I think it is telling that among the host of articles I have read on this deal, not as a single peep has peeped on this front.

What Will Happen?

They don’t call me the Novellstradamus for nothing, so here’s what I see happening:

Attachmate has to try to get some real value out of Novell. The clearest and easiest way to do that is from two sources:

• Products that integrate well with existing Attachmate products.
• Smart people that come to work for Attachmate.

Anything that meets this criteria will be quickly moved to the Attachmate side of the house. Once this is apparent to staff, people began leaving Novell as fast as possible for more attractive employers.

Attachmate is not a “go-getter” company. Take a look at their product line. Basically a bunch of  SSH and FTP clients. Exciting stuff. This is not a company that is going to be breaking new ground, even if that broke ground is half-assed clones of Microsoft’s latest half-baked offerings.

So, any of those fancy products are out. OpenSUSE and SUSE are done with, in terms of corporate backing. Take a look at the Attachmate Management Team, not a single mention of Linux and/or Open Source.  Attachmate will try to hold this a steady as possible while trying to sell it off. Major cuts in funding within 6 months. OpenSUSE community will not even be able to get an Attachmate janitor on the phone after 3 months.

Any Open Source contributions unreleated to Mono halve every year. In 2012, someone from Canonical gives a slideshow chastising Novell for their lack of “upstream contributions”.

Mono/Moonlight. There will be an initial half-hearted attempt to maintain this product line. Due to uncertainty about the future, combined with Microsoft killing off Moonlight as a desktop development envirionment, adoption of Mono will continue to slow, decreasing its value even further.

Not out of the question for a Mono-based start-up funded in part by Microsoft to appear, with less-than-equal focus on Open Source and Linux.

Any Novell bits that aren’t moved over to the main Attachmate side of the house will all be sold or spun off within 2 years. The earlier the better for all concerned, but the sale will be tricky now that Novell has gutted itself through the patent sale to Microsoft. It’s worth even less to any future buyer than it was for this deal.

Microsoft may continue to be involved, and might funnel some cash to Attachmate (via coupons or patent cross-licensing, or some other pretense) in either compensation for making the initial deal or to offset loses from the Novell division in return for just sitting back and letting it flounder.

Microsoft steps up patent FUD against Linux. Novell bootlickers continue to promote “IP peace of mind” in Novell ads and talking points, while never once taking responsibility for aiding Microsoft in its FUD campaigns.

I continue to be right about everything, as well as dashingly handsome and terribly witty at social engagements.

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.

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…!

Here is my favorite bit from RMS:

RMS: You shouldn’t write software to use .NET. No exceptions.

The basic point is that Microsoft has patents over features in .NET, and its patent promise regarding free software implementations of those is inadequate. It may someday attack the free implementations of these features.

This is no reason not to write and distribute free implementations such as Mono and DotGNU. But we have to keep in mind that using and distributing these programs might become dangerous in certain countries. Therefore, we should minimize our dependence on them – we should not write programs that use those features.

Mono implements them, so if you develop software on Mono, you are liable to use those features without thinking about the issue. It is probably the same with DotGNU, except that I don’t know whether DotGNU has these features yet.

The way to avoid this danger is not to write programs in C#. If you already have a program in C#, by all means use a free platform to run it. But don’t increase your exposure to the danger – don’t write additional code in C#, and don’t encourage people to make more use of C# programs. We need to guide our community away from dependence on an interface we know Microsoft is in a position to attack.

This perfectly illustrates the difference in approach from Team Apologista.

Consider:

Promises Promises

Team Apologista refuses to honestly acknowledge that the patent promise covering .NET is insufficient. In fact, a favorite tactic of Mono Apologists is to mention some other technology (usually AJAX or FTP) and then pretend the Mono situation is similar to AJAX, and so if one is opposed to the former, they must also oppose the latter, or are ignorant/hypocritical/whatever.

The truth of the matter is that .NET is NOT under the same “promise” that these other technologies are, so this ruse is dishonest inaccurate. Shockingly, Mono apologists continue to use this faulty “defense”.

Additionally, much of .NET (and corresponding portions of Mono) are NOT covered by any promise whatsoever – and despite Team Apologista’s occasional concession on this point (often with vague promises to “split” Mono into “covered”/non-”covered” portions), I feel it is not unfair to say Team Apologista downplays this distinction.

Furthermore, the covenant covering Moonlight is even more troublesome than that covering the ECMA-approved bits of .NET, yet I do not see a clear difference in promotion or eduction on these issues from Team Apologista. Again, to be polite, “downplaying the problems” is a fair characterization.

RMS points out that “if you develop software on Mono, you are liable to use those features without thinking about the issue.” But I think it’s more than that – I think Team Mono has intentionally obscured the facts to make it more difficult to think about the issue. It goes beyond counting on people being too lazy/uninterested to examine things right into deliberate misinformation.

Dependency Hell

Team Apologista actively promotes Mono/Moonlight for Mono/Moonlight sake, increasing dependence on Mono (and by extension, Microsoft’s goodwill).

The entire path into GNOME for Mono is entirely based around a simple note-taking application! Pure insanity! Even if one accepts the argument that a note-taking application is so important that a desktop suite simply can not do without one, the answer is not to roll up one that requires an otherwise useless and seperate framework to support it, and further not to do away with it immediately once an acceptable replacement exists.

The foolishness, technical idiocy, and blatant transparency of the Tomboy debacle in GNOME combined with the latter retarded arguments that “oh well, now that Mono is in there, might as well bring in even more Mono apps” is clear evidence that something’s rotten in the State of the Art over at Team Apologista HQ, and immediately and conclusively puts to the lie any technical-based argument in support of Mono.

There are many more (thankfully, less sucessful) attempts to increase Mono dependency in GNOME and in major distros. Usually taking the form of simply rolling out yet another implementation of existing application functionality – but this time written in awesome Mono – most of these projects have failed to gain footholds. It doesn’t stop Team Apologista from trying, though. Desktop Search? Need it in Mono! Torrent client? Need it in Mono! Photo editor? Need it in Mono! Media Player? Need it in Mono!

Why the need to re-create everything in Mono?

To go back to RMS’ point: “Don’t increase your exposure to the danger.”

One issue

Mr. Bott calls out some of the points made on the PlayOgg FAQ as being “FUD”, “outright lies”, “technically absurd”, “factually dead wrong”, and maybe even downright anti-kittens-with-funny-captions-underneath.

Let’s look at one of his examples (we’ll only take the first one, but the entire article is chock-full of fallacious fun).

From the PlayOgg FAQ:

Unlike MP3, Ogg Vorbis is not restricted by patents. Microsoft had to pay $1.5 billion after being sued for using MP3 without a license. With Ogg Vorbis, they would have been safe!

Mr. Bott offers two criticisms:

That is an outright lie. Microsoft did not have to pay a penny to anyone as the result of a lawsuit on the MP3 format.
[...]
That overlooks the inconvenient fact that the first stable version of the Ogg Vorbis reference software (version 1.0) was not released until July 2002. It’s hard to imagine how Microsoft could have chosen the “safe” open-source option when it didn’t exist yet.

The problem

The truth is that as things turned out, Microsoft did not have to pay $1.5 billion. It was on the hook, and then off again six months later when a judge overturned the jury verdict.

Does that make the FAQ an “outright lie”? You be the judge.

If the last sentence off that PlayOgg FAQ had been a little more explicit and read “With a patent-free format like Ogg Vorbis, they would have been safe!”, would that be better? Would it change the validity of the point?

Of course not -  the point the PlayOgg FAQ is attempting to make is perfectly valid: there are no (first-party) patent restrictions on Ogg Vorbis[1], and MP3 has more than a few licensing and patent issues.

How about if the other patents that Microsoft did have to pay for in the same dispute with Alcatel-Lucent – to the tune of $512 million dollars – were mentioned?  True, they weren’t audio codec patents, but they were still the results of “infringing” on software patents.

Isn’t that the over-riding concern behind the PlayOgg campaign?

The polemics

People like Mr. Bott who carry water for organizations like Microsoft are going to resort to hypocrisy, hair-splitting and strawman-bashing tactics.

For example, Mr. Bott seems quite content to quote the CEO of the MPEG-LA asserting that “no one in the market should be under the misimpression that other codecs such as Theora are patent free” in the very article where he is taking the FSF to task for FUD.

For another example, Mr. Bott seems quite content to characterize the FSF as “open-source advocates” – a very sloppy generalization – in the very article where he is taking the PlayOgg FAQ author to task for making sloppy generalizations.

It is my contention this sort of rhetoric always occurs when people are more interested in “scoring points” than reaching the truth of the matter or engaging in honest debate. There is a mindset that if you can score enough points you somehow change reality and win the argument even if you are wrong. I don’t get that way of thinking, but it seems to be quite common.

The prevention

So, be aware of that mindset when you write. There will always be someone out there ready to take a cheap shot or play integrity-free games with the point you are trying to make. You can’t stop them – because they aren’t after the truth - but you don’t have to give up free points on the goal either.

[1] It would be difficult to claim there are no patent restrictions at all on any non-trivial software, because of the currently terribly broken software patent system in the United States. Since patent trolls or any random 3rd party can claim a patent violation, the best one can claim is that the producer itself has declined to restrict the software.

Usually I’m not this pedantic, but since being a bit more pedantic is sort of the whole point of this article …

The Film

Patent Absurdity provides an easy-to-understand walk through the legal and historical development of software patents, and also takes care to point out the severe flaws in the results.

The eHarmony patent is devastatingly illustrative if you can follow a slight bit of math, and the Beethoven / patent music argument quite striking – I applaud the film maker for finding such a great example!

A film well worth watching and I recommend it highly. Not only did I learn a lot, but even those areas I was familiar with were clarified.

The Players

I was very happy to see prominent members of the FSF and the SFLC in the film. Just another example of the crucial issues these organizations are addressing.

The Wiki

It seems that the End Software Patents wiki is affiliated with the Patent Absurdity film in some way. I last mentioned the wiki back in August 2009, and am pleased to see it has grown a lot since then (and my very small points remain!).

Spend a little time on the wiki if you like – software patents are one of those things I can’t spend too much time on or I’ll get upset. The system is so obviously broken, it’s shameful.

Furthermore, the announcement asserts that Mozilla Firefox will support VP8 for HTML5 video (along with Google Chrome, naturally).

I mentioned in passing before the FSF request to Google to take this action, and if this news turns out to be true I think it will be a very positive development indeed.

There are patent concerns, but Google has a very good record on patents, so I am optimistic there.

Apple?

A big question is will Apple support VP8? They seem to have a lot invested in H.264, and a fierce independent streak these days, so I’m not sure if they would come on board. Sure would be nice, although I suspect they may simply not see an immediate benefit (having the proper licensing already in place for H.264) and defer.

Microsoft?

Seriously, who cares? Whatever Microsoft does will be 5 years too late anyway after trying (and failing) to introduce their own in-house similar (but incompatible) “standard”.

Although it may disappoint Miguel de Icaza,  Microsoft no longer calling the shots on the web is one of the best things that could happen to humanity outside of actual cold fusion on the desktop. And I ain’t talking about another crappy Adobe product.