Market observers raise a lot of objections against the MS-Novell partnership. But what gets hardly discussed: Upcoming legislation in the European Parliament could make the MS-Novell patent indemnification deal1 a "useless defense".
The "amended directive on criminal measures aimed at ensuring the enforcement of intellectual property rights", commonly called "IPRED2", says that
"Member States shall ensure that all intentional infringements of an intellectual
property right on a commercial scale, and attempting, aiding or abetting and
inciting such infringements, are treated as criminal offences." (Article 3)
This text makes patent indemnification deals meaningless. If Microsoft wanted to use its patents against a Novell customer, it would not need to sue anyone, but simply report patent infringers to the police.
In Article 8, the proposed directive continues to make threats:
"Member States shall ensure that the possibility of initiating investigations into, or prosecution
of, offences covered by Article 3 are not dependent on a report or accusation made by a
person subjected to the offence."
Anyone may report a patent infringement to the police. Patent infringement will become a crime against the state, and indemnification deals become useless. You would need a real explicit patent licensing agreement which is compatible with provisons of the GPL and other free licenses2. Under the current enforcement regime patent infringements are often tolerated by the rights holders. It is up to them to enforce their patents in civil courts.
Bruce Perens recently blogged explaining his Novell petition:
Let's be truthful about software patents: there can be no non-trivial computer program,
either proprietary or Free, that does not use methods that are claimed in software patents
currently in force and unlicensed for use in that program. There are simply enough patents,
on enough fundamental principles, to make this so. If all software patents were enforced
fully, the software industry would grind to a halt.
The EU-Commission's proposal now turns all patent infringements into criminal offences, provided they are committed intentionally and on a commercial scale.
FFII president Pieter Hintjens says:
"We see the MS-Novell deal as an attempt at anti-Linux FUD (fear, uncertainty, and doubt),
aimed at IBM and the new GPL3 license. It's like SCO all over again. But it's a waste of time
to try to patch patent problems using shields, indemnification, or insurance.
The FFII is committed to improving the patent system at its base, and fighting bad laws like
IPRED2. Microsoft should be supporting us. They have many allegations of patent infringement
against them. Next time Bill Gates comes to Brussels, he could be slapped with hand-cuffs
instead of a cake."
Microsoft lobbyists - through the Business Software Alliance - are in fact lobbying against IPRED2. But reports from Parliamentary committees show that Members of Parliament do not yet fully grasp the implications of IPRED2.
