Re: Novell-MS Pact: former Lessig's student Matt can't grok the deal... "it all just doesn't add up"

[Alexander Terekhov]

He's also former "Novell's director of Linux Business Office" (now he's
at alfresco dot com -- "VP Business Development").

http://asay.blogspot.com/2006/11/microsoft-more-that-they-say-less-rosy.html

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Microsoft: The more that they say, the less rosy the patent deal looks

David Kaefer, the director of business development for intellectual
property and licensing at Microsoft, is on the record as saying a rather
curious thing:

    We've been very clear from the outset, and the financial realities
of the deal underscore this, that Novell's patents have value. One need
only go back to the late 90s with Novell's leadership in the directory
space to recognize the benefits of much of the research and development
that they conducted at that time.

I'm sure this is true; at least, I'm sure it's true (in fact, I know so)
that Novell's patent portfolio is significant. Not nearly as extensive
as Microsoft's, but significant in its own right.

But let's assume David is telling the truth. If so, then Microsoft, not
Novell, has the patent quandary, not open source. Or, at least, not
Novell. Novell claims to be using its patent portfolio to protect open
source ("We have stated our commitment to use our own software patents
to protect open source technologies"), but really its policy is more
self-serving. Understandable, but let's call a spade a spade.

Otherwise, if Novell cared about the community more than narrow
self-interst, wouldn't it put those important patents under cover of the
Open Invention Network so that they truly could protect open source?

Again, if Microsoft's patents are only worth $40M or so, and Novell's
are worth $300M, then does anyone have anything to fear about
Microsoft's patent rattling? If their value is comparatively worthless,
why is anyone bothering to take them seriously (this assumes, of course,
that someone is)?

And why, if Novell's patent portfolio is so significant, isn't Novell
using those patents to defend open source as it has promised to do,
rather than just its quarterly revenue target? Surely the company's
potential market would be even bigger if it made the open source pie
bigger, and not merely its current slice of it?

I'm with Mark Webbink on this one: it all just doesn't add up.
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Oh, Ah, BTW, apropos Mark Webbink...

http://www.no-lobbyists-as-such.com/florian-mueller-blog/red-hat-mark-webbink/

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Evidence for Mark Webbink’s pro-patent directive lobbying on July 5,
2005

In my previous blog article, I mentioned the fact that Red Hat’s deputy
general counsel, Mark Webbink, lobbied in the European Parliament on
July 5, 2005 (the day before the EP’s decisive vote to reject the
software patent bill) to keep the software patent directive alive.

I had not anticipated the kind of Internet debate that this statement
would trigger, including some insulting emails that were sent to me, and
least of all I would have expected Mark Webbink to call into question
the “veracity of [my] statements”, which is what he did in the
discussion below this LWN.net article. He knows exactly what he did.

The word “motivations” also appears in that posting. It’s really simple:
on the occasion of a patent suit having been filed against Red Hat, I
thought it was time to tell the truth. Especially the free and open
source software (FOSS) community should know where certain key players
stand. That will better enable people to take a critical perspective on
such initiatives as the OSDL Patent Commons.

Contrary to what Mark Webbink claims, my related statements are not
“unverifiable”. What he did on July 5, 2005 is a well-documented fact,
and here’s some evidence:

From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 2:53 AM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed

[cut]
Yes. The day before the vote, as I had been considered
by them as somewhat connected to Mr Rocard 8^) , I
have been quite heavily lobbied by a group comprising
Mrs Thornby-Nielsen (Sun), Mrs Moll (Google), Mr Webbink
(RedHat) and Mr Cox (IBM). All four had basically the
same concerns
[cut]

I have removed parts of the email and in particular the name of the
author, further to his request. He would prefer to stay in the
background, like many political advisers do. But europarl-help@ffii.org
is a key mailing list of European anti-software patent activists, and
dozens of people received that email directly. No one will seriously
question its authenticity.

And here’s an important excerpt from a follow-up email:

From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 1:44 PM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed

[cut]
> They were against the rejection deal, right? I know that Mark W. and
> Charlotte T.-N. didn’t want rejection.

It seemed so to me. All of them. Basically, it seemed
to me they were not likely to have no sotware patents
at all. The interpretation I gave Mr Webbink was that
it is not culturally acceptable, for most people that
come from the legal and patent world, to reject a system
from which one can make some money…
[cut]
I believe the above should eliminate all reasonable doubt about what
happened that day. While the FFII and I were asking everyone we knew in
the European Parliament to reject the proposed software patent
directive, Red Hat’s Mark Webbink, along with representatives of IBM,
Sun and Google, pushed in the opposite direction.

So what did he really want to achieve? Someone pointed me to an article
Mark Webbink wrote and which in its paragraph #20 refers to the EU
software patent directive. He asks for a definition of the term
“technical contribution” (a key term in patent law) that “will eliminate
the vast majority of business method patents and will restore a
substantial non-obviousness test to software patents”. If you read that
carefully, it means he accepts software patents per se. He’d just like
to raise the bar a little bit, and the FFII and I and all others who
know how substantive patent law is applied in practice can tell you that
defining “technical contribution” properly would not be a sufficient
measure. It would just have the desired effect as part of a coherent
framework of patentability criteria. Otherwise it’s like a bucket has
five holes and you close one: all of the water will still go through the
other holes.

In the same article, and in the Red Hat/Sun position paper that Mark
Webbink published again on LWN.net, a lot of emphasis is put on an
interoperability privilege. That, again, means to accept the
patentability of software per se, but to demand a carve-out for certain
purposes. To the FFII and myself, interoperability was not even a
secondary priority. We focused on the definition of what is patentable
and what is not. If software is not patentable at all, there’s no
pressing need for an interoperability exception as far as we’re
concerned. Interoperability was exactly the area in which the
pro-software patent forces were most wiling to make a concession if it
allowed them to win the wider battle.

Finally, I’d like to reiterate what I said in my previous post: What
Mark Webbink did behind the scenes is not necessarily Red Hat’s position
as a company, even though Red Hat has entrusted him with patent
lobbying. There are many people at Red Hat who clearly oppose software
patents, and who opposed the EU software patent directive, most of all
Alan Cox. 
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Go figure...

Ha! Alan Cox...

http://www.linuxtaliban.com/bilder.htm

LOL.

regards,
alexander.