Subscribing to the theory that the best defense is a good offense, Novell on Tuesday made it clear that any patent litigation against the Linux kernel or the open-source community would give Novell cause to check any accuser's own software against Novell's extensive portfolio of patents for possible retaliatory litigation.
The company's sentiments underscore the complexity of reconciling the roles that open-source and proprietary software play in enterprise IT environments and among software developers.
Although there hasn't been a substantial legal challenge to open source's legitimacy since SCO Group last year decided to take on AutoZone, DaimlerChrysler, IBM, and Novell in a sweeping attempt to defend its UnixWare operating system from Linux, Novell felt the time was right to warn any would-be litigators who might impede the open-source market. Novell about a year ago committed its future to the Linux market with the acquisitions of operating-system provider SuSE Linux AG and Ximian Inc., a maker of Linux desktop software.
On its Web site Novell states, "In reality, open source software poses no greater risk of patent infringement than does closed-source software." The company goes on to say, "Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open-source programs included in Novell's offerings, as dictated by the actions of others."
"We don't think that patents should be used to shut down innovation," a Novell spokesman says. He adds that the company sees increased software patent litigation as a guarantee of "mutually assured destruction." Tuesday's statement recognizes that the threat of software patent litigation has become more relevant in recent months, the spokesman says.
IBM and Red Hat Inc. made similar overtures around the time of the August LinuxWorld conference. Nick Donofrio, IBM's senior VP of technology and manufacturing, pledged not to use his company's extensive patent portfolio against Linux. "We urge other companies to make the same statement," Donofrio said to the LinuxWorld audience--a remark that many took to be aimed at Linux critic and competitor Microsoft. Microsoft has said it expects to file about 3,000 software patents in fiscal 2005, a 50% increase over a year ago.
Red Hat has long promoted its position that software patents generally impede innovation in software development and that software patents are inconsistent with open-source software. Still, the company acknowledged on its Web site beginning in August that it does maintain "portfolio of software patents for defensive purposes."
Novell's move comes on the heels of a $92 million settlement between Sun Microsystems and Eastman Kodak Co. last week regarding a 2-year-old patent dispute over the Java programming language.