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Microsoft, Novell, and "Clone Product" Lawsuits

Posted by CmdrTaco on Wed May 30, 2007 10:05 AM
from the sue-sue-sudio dept.
Linux Business
El_Oscuro writes "The MS/Novell deal specifically excludes patent protection for "clone products." In the agreement, a clone product is broadly defined as "a product (or major component thereof) of a Party that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of the other Party ... and that has the same or substantially the same user interface, or implements all or substantially all of the Application Programming Interfaces of the Prior Product." The text of the clone product definition subsections is very cumbersome to read, but it specifically mentions OpenOffice, Wine, and OpenXchange by name without asserting that they are necessarily clone products."
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  • OS, Office, Samba, Music Players, Directory Browsers, ...well, I'm bored.

    • Re: (Score:3, Interesting)

      by jimstapleton (999106)
      For business users, I'll just name what would be the top 3 they know of or don't think about...

      Device Drivers
      Web Servers
      SQL Database Servers

    • Re: (Score:3, Interesting)

      by flyingfsck (986395)
      Yup, pretty much everything is excluded, making it a nonsence agreement. However, considering that MS paid Novel M$40 for the agreement, it makes sense from Novell's point of view...

  • In other words... (Score:5, Insightful)

    by xzvf (924443) on Wednesday May 30 2007, @10:14AM (#19322015)
    Novell open source users are not protected from Microsoft's vaporware patent lawsuits.

  • They are not clones (Score:5, Funny)

    by uspsguy (541171) on Wednesday May 30 2007, @10:16AM (#19322035) Homepage
    Functionality is the key. Linux products are dependable and do not crash so they are functionally different than any MS product.

    • Re: (Score:3, Interesting)

      by MrNemesis (587188)
      Karma to burn, so here goes...

      I realise you're semi-joking and for a large part of Linux/FOSS I'd agree with you. I've never had apps like Samba or BIND or OpenSSH fall over on me, even under reasonably high loads, (the only problem I've had recently has been the experimental sky2 driver) but on the desktop things are a bit of a different story.

      And I'm not even talking about things like little basement apps written by people like me with little to no programming experience. By far the biggest problem for me
      • Ok, I'll flame you then (sucker! :-)).

        X probably exercises a lot of memory, so have you ever tried to install a memory checker such as memtest86, reboot with it, and run it all night? It might catch memory errors that don't often show up under regular use. I don't know about the i810 driver, but if you experience problems when you do the exact same action (e.g. playing a 3-d game or something) then you might want to spend the energy to complain at your distribution maker that game Y always crashes or has

    • No "Mr. Clippy". No "Cancel or Allow" nag boxes. No BSOD. I guess they're not really clones after all.

  • Windows Clone? (Score:3, Interesting)

    by Lost Penguin (636359) on Wednesday May 30 2007, @10:18AM (#19322087) Homepage
    Windows was a clone product. (MAC/X-Windows)
    Microsoft Exchange is a clone (sendmail)
    DOS (CPM)
    Microsoft does not invent, only "embrace, extend, extinguish".
    • MS would do better to stop piracy than to stop "clone products".

      Besides, what "new computing concept" have they come up with?

      I used Word Perfect before there was an MS Word

      I used visi-calc before there was an Excel.

      I can't think of one piece of software that was written by MS that wasn't written somewhere else first. I could be wrong, however.

      Unless they're talking about "look and feel", which I won't comment on.

      • Re: (Score:2, Informative)

        by mstahl (701501)

        I was going to suggest Powerpoint but then . . . does anybody still remember HyperCard??? That program was amazing! I don't think you could write Myst in Powerpoint.

        For the youngins out there, HyperCard was a presentation app like Powerpoint but it allowed scripting in much the same way that Flash does nowadays. Myst was made by adding extensions to HyperCard, written in Pascal (which was another of its tricks). Yay HyperCard, boo Pascal!

      • Um Bob, Clippy? Don't be forgetting Microsoft's contribution to innovation!

      • Re: (Score:3, Interesting)

        by Locutus (9039)
        Exactly, why are/did companies think they were getting any real protection from Microsoft and actually purchase these Suse contracts from Microsoft? Doesn't Walmart have a couple or three lawyers around to look at this contract between Microsoft and Novell? Or did Microsoft write up an nice summary for them and THAT is what the decision was based on. There were huge holes in the original agreement which let Microsoft sue anybody no matter if they had a Suse license or not. Now, we find that there is a "clo
        • Actually, DR-DOS worked just fine. It was just that Windows detected it and then pretended it did not work properly.

        • Re:Windows Clone? (Score:4, Insightful)

          by Locutus (9039) on Wednesday May 30 2007, @12:10PM (#19323885)
          From what you described as the "ribbon interface" in MS Office 2007, it sounds like context based toolbars. The application menu and tool bars of a mid 90s OpenDOC container part comes to mind. It's also pretty common in most word processor and spreadsheet apps since they do this when adding things like graphics and charts to a doc. And there are probably tons of other examples of menus and/or toolbars changing based on the context of the editing or user interest.

          Is this the Microsoft "innovation" you are talking about?

          LoB
    • Well no, I would not be so harsh. The Microsoft security flaws are all their own innovation.
  • The section is vague at best. Hundreds of open source projects have "the same or substantially the same features and functionality as a then-existing product (or major component thereof) of [Microsoft] and that (a) has the same or substantially the same user interface, or (b) implements all or substantially all of the Application Programming Interfaces of the Prior Product."

    Samba could be viewed as a clone product, but so could gedit (clone of notepad). Firefox might be a clone of Internet Explorer 7. What about totem? Looks an awful lot like Windows Media Player, at least the older versions. Nautilus behaves a lot like Windows Explorer, huh?

    This section is stupid and ridiculous and is likely to get struck down by the first courtroom judge that looks at this thing as being too vaguely worded.

    IANAL and this is not legal advice.

    • Missing The Point (Score:4, Interesting)

      by mpapet (761907) on Wednesday May 30 2007, @10:48AM (#19322599) Homepage
      IMHO the whole point of the effort on Microsoft's part was to thin the money-making distro herd.

      1. Create the perception that there is an approved Linux distro. This is a requirement for bureacracy-bound businesses that have to check with Legal/PHB's before "purchasing" a Linux distro.

      2. What better way to waste Novell's resources than create documents that protect nothing? It's a poorly run organization and this agreement is an excellent example of _exactly_ how poorly it is run. I'm sure there are great people that work at Novell, they just don't get to make strategic decisions. Novell is slowly circling the drain and Microsoft needs the perception of competition and cooperation to keep legislators pushing their agenda. http://finance.yahoo.com/q/ks?s=NOVL [yahoo.com]

      3. One of Microsoft's goals is to capture Linux revenue. This, more than anything else will keep OSS at bay.

    • This section is stupid and ridiculous and is likely to get struck down by the first courtroom judge that looks at this thing as being too vaguely worded.

      Of course, the experience of Mic^H^H^H SCO vs IBM is that it takes four years of expensive legal shennanigans before the judge is allowed to even speculate about the possibility of considering making such a judgement.

      Anyway, you seem to be mistaking this for something that is intended to be legally enforcable.

      The idea is to imply that lots of products

      • You didn't read the text. All it says is that what matters is two products have the same functionality, it doesn't mention anything about whose product came first.

      • Re: (Score:3, Informative)

        by init100 (915886)

        There are countless other FOSS projects which got started when someone said "I wish we had an open source version of X" because they didn't want to pay the original developer for having developed some useful capability.

        There are several reasons to develop an open source clone of a proprietary product, not just the free-as-in-beer reason.

        I think Microsoft has every right to protect their inventions from such "predatory open-sourcing".

        You call writing a clone product "predatory open-sourcing"? I'll tell you what would amount to predatory open-sourcing: Disassembling your binary and posting the resulting code under the GPL. I strongly disagree that merely implementing your own clone of a product amounts to any predation.

  • *Rolls Eyes* (Score:3, Insightful)

    by VE3OGG (1034632) <VE3OGG@rac.LIONca minus cat> on Wednesday May 30 2007, @10:21AM (#19322139)
    So according to their exclusion agreement, Novell can't create an operating system? While it may not use the same APIs, it sure as Hell duplicates obvious functionality (well, duplicates in the sense that they do the same thing, not in the sense of Microsoft doing it first).

    Come to mention it, if such an agreement were widespread, how would anyone ever create a better product, since by the very virtue of the fact that you need to recreate some of the functionality to improve upon it.

    Sigh, I feel as if a thousand lawyers screamed out in delight when they wrote that clause in...
  • Various vendors implementing a common API is the very basic definition of modularity and interoperability. So far MSFT made its products non-interoperable by its marketshare muscle and political action etc. But it knows that once the users learn the difference between interopearability and microsoft-compatibility, people would demand truly interoperable products. It can confuse the issue only so long. Even if it pushes OOXML as an "international standard", the issues are being discussed in the open and at s
  • It has no other reason to exist but to run Windows software, so it clones the Windows API. Both Evolution and OpenOffice.org are no closer to Microsoft Outlook and Microsoft Office than other competing software. They do substantially the same tasks and the free software packages certainly are influenced by the Microsoft competitors, but then again both of them are heavily influenced by the same software predecessors.

  • Magic Beans (Score:4, Insightful)

    by _Sprocket_ (42527) on Wednesday May 30 2007, @10:26AM (#19322235)
    The more details come to light... the more I'm wondering what Novell got out of this deal.

    • Re: (Score:3, Interesting)

      by flyingfsck (986395)
      Novell got Fourty Million Dollars out of it. MS is the loser. Novell is an incredibly shrewd company. Over the years they have screwed MS out of almost a billion dollars in the form of out of court settlements. MS must have seen another one coming and did a pre-emptive submissive roll over...
    • While I dislike this deal as much as anyone, one thing I've learned from following the SCO lawsuits is that Novell has some pretty sharp lawyers working for them. I know they are expressing concerns over GPL3, but I think that is more for the investment side of things than legal.

  • Mono (Score:3, Interesting)

    by pavon (30274) on Wednesday May 30 2007, @10:31AM (#19322307)
    While the definition is vague, and one could argue that programs like OpenOffice are no more clones of MS Office as any other office program out there, other programs like Mono, Moonlight, and WINE would absolutely be considered clones by any definition. So much for this deal promoting interoperability.
  • Read on... the agreement excludes patent suits with the following exceptions: clone products, foundry products, and other excluded products. Here's the parts I have trouble with:
    • The clone product part of the agreement includes the following text "...that are compliant with a specification of a standards organization as to which the other Party has consented to the use of its Patents therefor, shall not be considered in determining whether the product is a Clone Product." in other words, if a product is compliant with a web standard for which MS or Novell holds a patent, they can't use the inclusion of the functionality standard to defend against a lawsuit. Great. Wanna bet MS has patents related to browser rendering (a major component) functionality that hits this?
    • More fun language... "even if a new product (or major component thereof) meets such requirements, only those Patents covering inventions in new features and functionality in such Clone Product may be asserted against such Clone Product, and only with regard to Clone Product Functionality." In other words, if MS adds something that may or may not have patent to a product, if a "clone" figures out how to duplicate it, the patent protection agreement doesn't apply. Hmmm. Sound familiar?
    • Notwithstanding subsection (i) above, Wine, OpenXchange, StarOffice and OpenOffice are not subject to such subsection (i)... AKA reverse engineered clean room code which began development before the DMCA existed isn't going to be protected from lawsuits -- even though there is no copyright infringement and no digital rights law that relates to that early code.
    • It gets worse: "Foundry Products" i.e. third part products not designed by or specified by Novell etc. aren't covered. So if I read this right any tools, demos, etc. that might exist on a SUSE distribution are excluded from patent litigation protection and are explicitly denied protection by the clause which states that software which is " made, reproduced, sold, licensed or otherwise transferred through or by the Acting Party for the primary purpose of attempting to make such product subject to the covenants under the Covered Patents of the other Party so that a third party's customers can receive the benefit of such covenants." will be excluded. Hooray. Good job Novell -- cover yourself but shoot all third party developer's ability to protect ourselves by excluding our work -- even if you distribute it.
    • and finally my personal favorites. Other excluded products include (a) office productivity applications (word processing, spreadsheets, presentation software, etc.).... (b) new features and functions in the following categories of products of the Parties, but not to the extent the products embody operating system software or other enabling technologies: (i) video game consoles, console games, video game applications designed to run on a computer, and on-line video gaming services ... (ii) business applications designed, marketed and used to meet the data processing requirements of particular business functions, such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management; (iii) mail transfer agents (aka email servers); and (iv) unified communications. In other words, none of the major applications or application types usable by a business are covered by the no-suit ingredient.

    Sounds like a good enough set of reasons to not support Suse Linux any more. Ubuntu anyone?

    • IANAL, but if I understand things correctly (I'm sure lawyers in the crowd will correctly) Novell customers are in deep trouble if Microsoft ever decides to make patent lawsuits.

      Novell basically agreed that there are infringing patents in SUSE Linux (otherwise, what are they licensing per SUSE license?). Novell customers who use the Microsoft coupons have agreed that this is the case also, so they are infringing.

      But the N-M protects them, so they don't have anything to worry about for 5 years (the life of t
  • wasn't the suit between MS and Apple/Mac a while back over not being able to patent a UI? I thought it was.

    I think MS is playing a dangerous game here, and I think they are going to loose.

    • Re: (Score:3, Informative)

      by KarmaMB84 (743001)
      No, that lawsuit set absolutely no precedent. Apple had actually licensed Microsoft to use nearly everything they sued them for and most of the remaining elements were found to not be copyrightable since "they were the ONLY way you could do it" (not because UI isn't copyrightable).

      The judge made NO ruling on whether you could copyright UI and it had NOTHING to do with patents. In fact, since the judge DID decide that some parts were NOT copyrightable because "they were the ONLY way you could do it", that

  • a clone product is broadly defined as "a product (or major component thereof) of a Party that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of the other Party ... and that has the same or substantially the same user interface, or implements all or substantially all of the Application Programming Interfaces of the Prior Product."

    What a long-winded, obfuscated way of saying "interoperable competitor".

  • how dare they clone us! (Score:3, Funny)

    by phrostie (121428) on Wednesday May 30 2007, @10:38AM (#19322423)
    the nerve to clone wonderful original works like WordPerfect or Lotus123,,,,wait, are they saying MS Office is original?
    • That's the biggest problem I'm having with this, and it's actually amusing in its irony. Microsoft doesn't have an original bone in its body, and some of Microsoft's most important, profitable, and successful products are indeed clones of other products. It's like they're saying that they're allowed to copy their competition and absolutely obliterate them in the process, but if someone copies them - or copies their copies - they can sue you into the ground. If they actually tried to take anyone to court ove
  • 'cause MS Word is a clone product of Word Perfect!
    (and Wordstar).
  • The applications companies might even remotely want protection against Microsoft lawsuits for are OpenOffice, Samba, Evolution, OpenXchange, and Mono. Yet, it looks like the Novell/Microsoft deal fails to provide protection for specifically those packages. Seems to me that that makes Novell's deal largely worthless for licensees, since they receive no more protection by buying from Novell than they do by buying from RedHat.

    (And while there's nothing legally wrong with their definition, it's absolutely rid

  • Is there any relevance? (Score:5, Insightful)

    by Shotgun (30919) on Wednesday May 30 2007, @11:58AM (#19323715)
    I'm soft of totally confused looking for any relevance to anything here. Microsoft gave Novell $40M, and agreed not to sue Novell's customers, unless Novell's customers were using Novell's product (the wording of the exceptions seem to exclude anything that could possibly be in a distribution).

    My question is, "What difference does the agreement make?"

    M$ could possibly sue Novel, et.al., before the agreement was signed. Now, M$ is out $40M, and still could possibly sue Novel, et. al. The possibility of M$ winning such a lawsuit remains as remote as it was before. It appears that the $40M was simply the cost of a publicity stunt. Wouldn't another fake grassroots campaign have been more effective?

    • yeah well (Score:4, Funny)

      by JeanBaptiste (537955) on Wednesday May 30 2007, @10:26AM (#19322237)
      I patent the numbers 0 and 1

      A penny per usage

      (patents for the numbers 2, letters F and U still pending)
    • Does this mean Novell can sue Microsoft for copying the GUI from UNIX? X Windows is older than Windows and Windows certainly acts similar to the old UNIX workstations I used to use back in college.

      No, wait, according to Apple, Microsoft stole the GUI from them! Ah, never mind. Maybe PARC should start throwing around some law suits...

      • Re: (Score:3, Informative)

        by hedwards (940851)
        And perhaps then Stanford should then sue PARC for ripping their mouse system.

        http://imrl.usu.edu/OSLO/technology_writing/004_00 3.htm [usu.edu]

      • Re: (Score:3, Informative)

        by ClosedSource (238333)
        Try running X windows on a 8088 processor with 256KB of RAM and no hard disk and get back to us. In any case, X was created by MIT, not by AT&T, so there's no core UNIX intellectual property issue there. In addition, the only unique technological feature that X contributed was network transparency, which Windows 1.0 didn't implement, so it could hardly be a clone.
    • I attended an infiniband conference [infinibandta.org] and someone from Novell spoke there about Linux and Infiniband and the changes that they are making to linux for real time performance. He specifically mentioned using RTLinux [wikipedia.org] and was a bit rude to me and did not answer my question when I asked him specifically about the RTLinux/FSMLabs/WindRiver patents [linuxdevices.com] which have been controversial.

      Doesn't matter to me though, Xenomai [xenomai.org] wins in every way and it is not encumbered by any existing patents.

      --jeffk++

      • Doesn't matter to me though, Xenomai wins in every way and it is not encumbered by any existing patents.
        Don't tell Microsoft, they'll patent it.
    • "What isn't Microsoft trying to sue the hell out of it?"

      What for? You don't have to be doing anything illegal to get sued, but a judge is likely to throw the case out if they're not breaking any laws.

      What laws are the WINE developers breaking?

    • Re: (Score:3, Interesting)

      by deanoaz (843940)
      Actually there is a precedent for cars.

      A patent on the automobile was granted and many manufacturers were forced to pay up. Look up the "Selden Patent".

      It was Henry Ford who finally broke the scheme by refusing to pay and putting his money into lawyers to attack the patent holder instead. He initially failed, but kept at it and won on appeal on the basis that the engine design Selden used in his design (Selden had built an engine, but never a car) was not the same design Ford and other car makers were using

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