Novell CTO: Let's 'Make Patents a Non-Issue'

The company that last year notoriously partnered with Microsoft to form a covenant that protects its customers from being sued for copyright violations, today announced it's partnering with the Electronic Frontier Foundation in a three-year-old effort to challenge the validity of patents for relatively ubiquitous technologies.

Novell said today it will contribute humanpower and resources to the EFF's lobbying efforts for legislative reform, though it did not specifically tie itself to the Patent Reform Act currently being debated in both houses of the US Congress.

In a statement likely to be quoted and repeated everywhere in coming days, Novell CTO Nat Friedman said today, "Today's announcement is a logical next step for Novell in its efforts to make patents a non-issue for the software community. Under the current patent system, without a willingness by all companies to share their patents freely, software patents hobble open standards and interoperability, impede innovation and progress, threaten the development of free and open source software, and have a chilling effect on software development. Our partnership with the EFF is about creating a world where software developers and users do not to have to worry about the negative consequences of patents."

Friedman's statement appears to state Novell would prefer a market where all competitors put their ideas on the table, without all that messy licensing. This from the company that last October filed a motion seeking 95% of revenues from licenses to SCO's Unix, which it acquired from a predecessor company that purchased the rights to Unix from Novell.

Though Novell admits it has claim to 500 patents currently, its statement today claims, "Novell recognizes the new model for innovation is open source, and the existing patent system is detrimental to open source development." The company repeated its pledge to use its portfolio only in defense of open source, which could mean the company may counter-sue on behalf of individuals threatened with IP violations.

But the EFF's three-part strategy for "patent busting" might actually weaken Novell's ability to utilize its portfolio in that manner. Specifically, the EFF project calls for "identifying the worst offending patents; documenting the prior art that shows their invalidity; and chronicling the negative impact they have had on online publishers and innovators." EFF attorneys then use these chronicles as evidence in legal challenges to patents' validity.

Current language in the Patent Reform Act under consideration by Congress would make it easier for the EFF to mount these challenges. The Act would enable a patent to be challenged up to 12 months after its being granted, but then let a claimant continually challenge its validity for any number of other reasons thereafter. This section of the bill has received the most scrutiny from opponents thus far; and if any clause is stricken in the name of compromise, this could be the one.

Also, however, the EFF's Patent Busting Project seeks to counter threats by major IP portfolio holders against "small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees - fees that often fund more threat letters and lawsuits." Individuals such as those Novell's covenant with Microsoft would protect from such suits.