Frienemies: Microsoft and Novell Agree to Disagree

The digital ink is hardly dry on Microsoft's peace agreement with Novell, but the outlines of the deal are already starting to blur.

After Microsoft CEO Steve Ballmer recently implied that Linux distributions infringe its patents, Novell’s CEO lobbed a warning shot across the Redmond software giant’s bow last week.

"Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell," said Mark Hovsepian, CEO of the Waltham, Mass.-based company.

The implication was clear. Even though the deal merely required both companies to agree not to sue over each other’s patents, there was no admission on either’s part of any infringement, a point that Microsoft acknowledged later Monday in a statement of its own.

"Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement," read Microsoft's rejoinder. "The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement."

Still, Microsoft went on to say that it "respectfully" disagrees with Novell's interpretation of the no-suing-allowed "covenant." The implication is that, as Ballmer had stated previously, Microsoft feels Linux infringes its patents. So instead, the issue of patents between Novell and Microsoft is more one of an illegitimate child that the parents have agreed never to mention for fear of upsetting the families -- all for the sake of the “children” . . . er, customers.

"The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities," Hovsepian’s statement said.

The two companies announced the three-part deal to collaborate, which included the patent agreement, on November 2. Then came Ballmer’s statements on infringement.

"Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly... disagree with the recent statements made by Microsoft on the topic of Linux and patents...our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property," Hovsepian’s statement said.

Additionally, Novell reiterated its longstanding position that it will use its patent portfolio to help defend Linux, in general, from legal challenges to its legitimacy.

Meanwhile, Reuters reported Tuesday that the Software Freedom Law Center in New York is working to revise Linux’s GNU General Public License to close legal loopholes that allow the Microsoft-Novell deal to exist. The proposed changes would ostensibly make Microsoft's promise not to sue applicable to everyone, the Reuters report stated.

About the Author

Stuart J. Johnston has covered technology, especially Microsoft, since February 1988 for InfoWorld, Computerworld, Information Week, and PC World, as well as for Enterprise Developer, XML & Web Services,, and .NET magazines. Contact him at [email protected].