Microsoft, Novell, and "Clone Product" Lawsuits

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."

Re:In other words...

[dattaway]

or in plain English, "Novel is fucked and didn't read the license before accepting."

The devil in the details -- again

[CodeShark]

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?

Re:Windows Clone?

[mstahl]

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!

Re:I didn't think you could patent a UI

[KarmaMB84]

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 would seem to indicate the judge at least believed some elements were copyrightable.

You'd have to find a different case to disqualify any copyrights or patents Microsoft has on look and feel. I'm pretty sure Adobe has litigated based on UI elements in their applications in the past long after the Apple look and feel suits were over with. Apple also continues to patent their UI elements as well as claim copyright protection for Mac OS X look and feel.

Flaming response (couldn't resist)

[fritsd]

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 weird stripes in 800x600 resolution with your kernel version and video card etc.

I'm as big a Linux fanboi as the next, but I would never claim that you're doing something wrong. That kind of behaviour (lockups and crashes) is simply unacceptable, I think everyone agrees. When you say X.org is still in its infancy I guess you refer to the version 7 split into modular system; do you mean you never had such lockups under a previous version? That might also be an important data point to tell in your bugreport.

As you said, you submit bug reports where possible: great. For other readers I'd just reiterate: don't expect anyone helping you out if you never send in a short formal bugreport with the details you (at your technical level) deem important. The authors of the software (X.org in this case) may have never tested it out in your exact configuration; PC hardware is very diverse. Complain to your distribution makers: they'll assess it and pass it on upstream (possibly after a long time; if you want instant results, hire somebody to solve it).

Try to see it from the X.org programmers' perspectives (no, I'm not one of them, I'm guessing here): if you receive a lot of similar, readable, not too ranty, detailed bug reports then maybe (if you have time) you can track and fix the issues. But you are not going to trawl general forums (like slashdot) to see if somebody complains "it doesn't work".

Re:Windows a clone of X windows?

[hedwards]

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:Windows a clone of X windows?

[ClosedSource]

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.

Re:Section is vague at best

[init100]

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.