Microsoft and Novell agreements

Microsoft & Novell Interoperability Collaboration – Comments

 

Published: November 02, 2006 

 

HP

"This technology and business collaboration provides a model that allows Microsoft and Novell to develop new solutions to enable open source and proprietary software to work better together in a mixed source environment. We applaud these two companies for doing the hard work to build a bridge between Window and Linux,"

 

-- Shane Robison, EVP, Chief Strategy & Technology Officer, Hewlett-Packard Company

 

State of Delaware

"One of the key challenges in government is IT interoperability. We commend Microsoft and Novell for their collaboration and their efforts to build bridges in the interoperability area, which will help government to better serve our customers, our business community and our citizens,"

 

-- Thomas Jarrett, Secretary of the Department of Technology/CIO, State of Delaware.

 

Bell Canada

"This agreement is a positive example of how companies with different business models and approaches to intellectual property can work together. Hopefully this is a model that others in the industry will repeat. Intellectual property is a currency of exchange in the software marketplace and today’s announcement is an important step in the continued progress of the IT industry as a whole."

 

-- Eugene Roman, Group President, Systems and Technologies, Bell Canada

 

City of Seattle

"The City of Seattle’s IT staff supports a number of different operating environments, including Microsoft Windows, Novell NetWare and several varieties of Unix/Linux. All of these environments require separate physical servers, and our data center is running out of space. This new Microsoft-Novell collaboration agreement could allow significant virtualization of servers, reducing the number of physical platforms we’d have to maintain. That, in turn, reduces costs for maintenance, electricity, cooling and space, saving taxpayer dollars, and helping improve of stewardship of the environment. This helps to meet key goals set by Mayor Greg Nickels in his Climate Action Plan."

 

-- Bill Schrier, Chief Technology Officer, City of Seattle

 

Bitstream

"This announcement validates both open source and proprietary software and is a tremendous development for the IT industry. By addressing open source IP issues and focusing on enabling greater interoperability between their open source and proprietary products, Novell and Microsoft have sent a strong signal to the industry – it’s about customers, collaboration and innovation. Let’s hope others follow their example,"

 

-- Catherine A. Allen, CEO, Bitstream

 

Ingram Micro North America

"This collaboration of open source and proprietary software is a win-win for the IT industry and our customers because it provides greater choice when developing comprehensive solutions. This alliance allows resellers to better address the specific needs of their end-user customers -- even highly customized application needs. Congratulations to Microsoft and Novell for listening to customers, putting them first, and taking such a forward-looking approach."

 

-- Jodi Honore, Vice President, Vendor Management, Ingram Micro North America

 

Palamida

"One of the results of the rapid growth of open source software is a world of "mixed code", IT environments comprised of both commercial and open source software. At Palamida, we are dedicated to assisting our customers with the new intellectual property (IP) compliance, licensing and software asset management issues that result.

 

From our perspective, today’s announcement from Microsoft and Novell is an important advance in interoperability in this mixed code world – interoperability not only with respect to technical issues, but also to IP issues. This is a major win for customers who will now receive a whole new level of support and assurance in their deployment of mixed code IT environments."

 

-- Mark Tolliver, CEO Palamida

 

Raleys

"In everything we do, we put our customers first. It is heartening to see longtime competitors like Microsoft and Novell do the same for the long term benefit of the IT industry customers. Meaningful collaboration between leading software vendors that builds bridges between proprietary and open source software is necessary for the IT industry. We welcome these initiatives and hope to see others join in."

 

-- Eric Wilson, SVP and CIO of Raley's

Microsoft & Novell Interoperability Collaboration - Community Commitments

 

Published: November 02, 2006

 

Microsoft’s Patent Pledge for Individual Contributors to openSUSE.org

From time to time, individual developers wish to contribute their authored code to openSUSE.org projects. It is Microsoft’s intent that this pledge be legally binding and enforceable as to such individual contributors according to the terms below.

 

Non-Assertion of Patents Pledge

Microsoft hereby covenants not to assert Microsoft Patents against each Individual Contributor (also referred to as "You") for Your distribution of Your personally authored original work ("Original Work") directly to openSUSE.org, but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server, and (ii) You ensure that as a result of Your contribution, openSUSE.org, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property. This pledge is personal to You and does not apply to any use or distribution of Your Original Work by others.

 

There are a variety of ways to satisfy the requirement under section (ii) above. For example, one way to satisfy the requirement under US law is for openSUSE.org to include the following provision as is in its binding contribution agreement with You:

 

openSUSE.org agrees that as a condition of receiving the attached contribution of Your Original Work, openSUSE.org does not receive from You the contributor any licenses, covenants or any other rights under any Microsoft intellectual property with respect to that Original Work, and openSUSE.org will ensure that all further recipients of this Original Work will be subject to this same condition. "Original Work" has the meaning as set forth in Microsoft’s Patents Pledge for Individual Contributors to openSUSE.org.

 

An "Individual Contributor" is an individual open source software developer (and not any corporation, partnership or other legal entity). All Microsoft’s utility patents worldwide are subject to this pledge to the extent they are owned or controlled by Microsoft or its majority owned subsidiaries.

 

Reservation of Rights

Microsoft reserves the right to terminate and revoke this pledge to You, as of the date granted, if You or an entity that You control asserts a patent infringement claim against a Microsoft product, service or technology.

 

Microsoft further reserves the right to terminate this pledge and revoke this pledge to You upon the expiration or termination of that certain patent agreement entered into by and between Microsoft and Novell Inc., dated as of November 2, 2006.

 

In addition, Microsoft reserves the right to prospectively update and revise the terms of this pledge, for example to accommodate applicable laws, rules, orders or regulations. The rights provided under this pledge are personal to You and are not for the benefit of others. All rights not expressly granted in this pledge are reserved by Microsoft.

 

Microsoft’s Patent Pledge for Non-Compensated Developers

Many software developers, often referred to as "obbyists," write code not with the expectation of making money, but because they enjoy solving technical challenges and participating in a community of enthusiasts who recognize and encourage one another’s talents. One such community of hobbyist developers participate in the development of open source software. To further encourage these efforts, this pledge provides non-compensated individual hobbyist developers royalty-free use of Microsoft patents as set forth below.

 

It is Microsoft’s intent that this pledge be legally binding and enforceable as to individual hobbyist developers according to the terms below.

 

Non-Assertion of Patents Pledge

Microsoft hereby covenants not to assert Microsoft Patents against each Non-Compensated Individual Hobbyist Developer (also referred to as "You") for Your personal creation of an originally authored work ("Original Work") and personal use of Your Original Work. This pledge is personal to You and does not apply to the use of Your Original Work by others or to the distribution of Your Original Work by You or others. A "Non-Compensated Individual Hobbyist Developer" is an individual software developer (i.e., a person and not any corporation, partnership or other legal entity), including a developer of open source software, who receives no monetary payment or any other forms of consideration that can be valued monetarily for their creation of their Original Works. The fact that You may be employed as a software developer by, and receive a salary from, a corporation, partnership or other legal entity, does not disqualify You from treatment as a "Non-Compensated Individual Hobbyist Developer" under this pledge, provided Your activities related to the creation of Your Original Work are performed during Your free time and outside the scope of Your employment. The Microsoft Patents subject to this pledge are all patents issued world-wide to the extent they are owned or controlled by Microsoft or its majority owned subsidiaries. For additional information on obtaining rights under Microsoft patents to contribute Your Original Work to an open source project, please see Microsoft’s Patent Pledge for Hobbyist Contributors.

 

Microsoft reserves the right to terminate and revoke this pledge to You, as of the date granted, if  You or an entity that You control asserts a patent infringement claim against a Microsoft product, service or technology.

 

Reservation of Rights

Microsoft further reserves the right to prospectively update and revise the terms of this pledge, for example to accommodate applicable laws, rules, orders or regulations. The rights provided under this pledge are personal to You and are not for the benefit of others. All rights not expressly granted in this pledge are reserved by Microsoft.

Microsoft & Novell Interoperability Collaboration - Covenant to Downstream Recipients of Moonlight

 

Published: September 28, 2007

 

Covenant to Downstream Recipients

Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue Downstream Recipients of Novell and its Subsidiaries for infringement under Necessary Claims of Microsoft on account of such Downstream Recipients’ use of Moonlight Implementations to the extent originally provided by Novell during the Term and, if applicable, the Extension or Post-Extension Period, but only to the extent such Moonlight Implementations are used to provide Plug-In Functionality. The foregoing covenants shall survive termination of the Agreement, but only as to specific copies of such Moonlight Implementations distributed during the Term, and if applicable, the Extension or Post-Extension Period.

 

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Moonlight for Linux Collaboration Agreement between Novell and Microsoft that was publicly announced on September 5, 2007 (the “Agreement”); however, the foregoing covenant will continue as to specific copies of Moonlight Implementations distributed by Novell before any such update.

 

All rights not expressly granted by the foregoing covenant are reserved by Microsoft. No additional rights (including any implied licenses, covenants, releases, or other rights) are granted by implication, estoppel, or otherwise, including no rights under any additional patents of Microsoft and no rights to any technology not included in such Moonlight Implementations, even if additional related or enabling technologies (e.g., operating systems, web browsers, or other platform technologies) are required to use the Moonlight Implementations. Microsoft is not bound by, nor grants any rights under, any third party licenses with respect to the Moonlight Implementation (e.g., any versions of the General Public License).

 

Definitions – Covenant to Downstream Recipients

 

"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by Novell, Inc. or Microsoft Corporation, as the case may be, but the entity will be considered a Subsidiary only so long as such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture, or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for the entity is, now or hereafter, owned or controlled, directly or indirectly, by Novell, Inc. or Microsoft Corporation, as the case may be, but the entity will be considered a Subsidiary only so long as such ownership or control exists.

 

"Downstream Recipient" means an entity or individual that uses for its intended purpose a Moonlight Implementation obtained directly from Novell or through an Intermediate Recipient. An entity or individual is not a Downstream Recipient when such entity or individual resells, licenses, supplies, distributes or otherwise makes available to third parties the Moonlight Implementation. For avoidance of doubt, an entity or individual cannot qualify both as a Downstream Recipient and an Intermediate Recipient for use of the same copy of a Moonlight Implementation.

 

"Necessary Claims" means claims of a patent or patent application that (i) Microsoft Corporation or any of its Subsidiaries now or hereafter owns, controls, or otherwise has the right to license or covenant without the payment of any royalty or other amounts to any unaffiliated third party, and (ii) are necessarily infringed by an implementation of the Silverlight Specification. For purposes of the foregoing, a claim is “necessarily infringed” only when there is no commercially reasonable non-infringing alternative to such implementation that also implements the Silverlight Specification. “Necessary Claims” do not include any claims: (1) other than those set forth above, even if contained in the same patent or patent application as those set forth above; (2) covering any enabling technologies (e.g., operating systems, web browsers or other platform technologies) that may be necessary to make or use any Implementation; or (3) covering the implementation of other published specifications that may be referenced in the Silverlight Specification.

 

"Moonlight Implementation" means only those specific portions of Moonlight 1.0 or Moonlight 2 that run only as a plug-in to a browser on a Personal Computer and are not licensed under GPLv3 or a Similar License.

 

"Term" The term of this Agreement will commence on the Effective Date and continue through September 1, 2011, unless terminated earlier under the Agreement.

 

"Extension" means the period commencing on the day after the Termination Date and ending on the second anniversary of the Termination Date.

 

"Post-Extension Period" means the period after the end of the Extension.

 

"Plug-In Functionality" means the web browser plug-in functionality for receiving and rendering, in such web browser running on a Personal Computer, media and interactive web-based applications compatible with Silverlight 1.0 or Silverlight 2.

 

"Intermediate Recipients" means resellers, recipients, and distributors to the extent they are authorized (directly or indirectly) by Novell or its Subsidiaries to resell, license, supply, distribute or otherwise make available Moonlight Implementations (whether the resale, licensing, supplying, making available, or distribution is on a stand-alone basis, or on an OEM basis as bundled with hardware or other software of the reseller or distributor, or otherwise, so long as it is not bundled with a Linux operating system other than Novell-branded operating system software), except for resellers, recipients, or distributors who are in the business of offering their own branded operating system software.

 

"Silverlight Specification" means a specification relevant to developing Moonlight 1.0 or Moonlight 2 (as the case may be) to be compatible with Silverlight 1.0 or Silverlight 2, respectively, and any updates thereto identified as such and delivered to Novell pursuant to the Agreement.

 

"Moonlight 1.0" means only those portions of any web browser software plug-in developed by or on behalf of Novell for receiving and rendering, in the web browser, media and interactive web-based applications (including only such infrastructure and source code libraries that are necessary to enable the foregoing portions of the web browser software plug-in) which (a) when used with Media Pack 1.0, comply with and implement the Silverlight Specification for Silverlight 1.0 and pass 90% (or such lesser amount as the Microsoft and Novell mutually agree) of the Moonlight 1.0 Test Suite; and (b) are solely for use on a Personal Computer running a Covered Operating System. Notwithstanding the above, Moonlight 1.0 does not include any codec or DRM functionality or the functionality of Media Pack 1.0 or Media Pack 2, or any application platform interfaces (APIs) other than those implemented and exposed by Silverlight 1.0 for use with other applications.

 

"Moonlight 2" means only those portions of any web browser software plug-in developed by or on behalf of Novell for receiving and rendering, in the web browser, media and interactive web-based applications (including only such infrastructure and source code libraries that are necessary to enable the foregoing portions of the web browser software plug-in) which (a) when used with Media Pack 2, comply with and implement the Silverlight Specification for Silverlight 2 and pass 90% (or such lesser amount as Novell and Microsoft mutually agree) of the Moonlight 2 Test Suite; and (b) are solely for use on a Personal Computer running a Covered Operating System. Notwithstanding the above, Moonlight 2 does not include any codec or DRM functionality or the functionality of Media Pack 1.0 or Media Pack 2, or any application platform interfaces (APIs) other than those implemented and exposed by Silverlight 2 for use with other applications.

 

"Personal Computer" means a general purpose computer (including a laptop, tablet PC, desktop or ultra mobile personal computer) that is (i) designed and marketed for operating a wide variety of productivity, entertainment and/or other software applications from unrelated third parties; and (ii) runs a general purpose consumer operating system (such as Microsoft Windows XP or Microsoft Windows Vista, Apple Macintosh OS X, SUSE Linux, Solaris, OpenBSD, FreeBSD etc.). Personal Computers do not include personal digital assistants (PDAs), Pocket PCs, or mobile telephones. Personal Computers do not include personal digital assistants (PDAs), Pocket PCs, or mobile telephones.

 

"GPLv3 or a Similar License" means the GNU General Public License version 3, the GNU Affero General Public License version 3, the GNU Lesser General Public License version 3, any equivalents to the foregoing, or any other license or contract that includes terms similar to the terms in paragraphs 6 or 7 of Section 11 of the GNU General Public License version 3.

 

"Effective Date" means September 4, 2007

 

"Termination Date" means the effective date of expiration or termination of the Agreement

 

"Silverlight 1.0" means the commercial release version of Microsoft Silverlight 1.0.

 

"Silverlight 2"means the commercial release version of Microsoft Silverlight 2.

Covenant to Expanded SLES Subscription Customers

 

Published: November 10, 2008

 

Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue Novell’s Customers and Novell’s Subsidiaries’ Customers for infringement under Covered Patents of Microsoft on account of such Customer’s use during the Covenant Term of those portions of a specific copy of a Covered Product that both (i) meet the requirements of the Certificate, and (ii) are supported by Novell under a support agreement provided by redeeming the Certificate.

 

Definitions of capitalized terms used above may be found below.

 

Microsoft reserves the right to update (including discontinue) the foregoing covenant at any time; however, the covenant as set forth above will continue for the Covenant Term as to those portions of specific copies of Covered Products that were subject to the foregoing covenant before such update. The foregoing covenant is personal to the individual Customer and is not transferrable. Microsoft reserves all rights not expressly provided under the foregoing covenant.

 

Definitions

 

"Applications Programming Interfaces" means a set of one or more routines or interfaces provided by a software program (including an operating system, middleware or other software application) that are used to invoke or direct functions or services of such software program for use by other software programs. For avoidance of doubt, Applications Programming Interfaces does not include protocols used by software programs running on a computer system to communicate with another computer or software programs running on another computer.

 

"Certificate" means a tangible or electronic item that Novell provides to Microsoft and Microsoft resells to Customers of Novell under the Expanded SLES Subscription Agreement between Novell and Microsoft that was publicly announced on August 20, 2008.

 

"Clone Product" means a product (or major component thereof) that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of Microsoft ("Prior Product") and that (a) has the same or substantially the same user interface as the Prior Product, or (b) implements all or substantially all of the Applications Programming Interfaces of the Prior Product. Those portions of a product that are otherwise licensed to Novell from Microsoft, or that are compliant with a specification of a standards organization as to which Microsoft has consented to the use of its Patents therefor, shall not be considered in determining whether the product is a Clone Product.

• (i) Versions of products sold, licensed, supplied, distributed or otherwise made available by Novell for Revenue before the Effective Date (or major components thereof) (“Existing Products”) and new versions of such Existing Products to the extent they incorporate features and functionality of Existing Products (“Existing Product Functionality”) will not be deemed Clone Products. For purposes of clarification, Existing Product Functionality may be considered in determining whether a new version of an Existing Product (or major component thereof) meets the requirements set forth in the first paragraph of this definition, provided that, even if the new version (or major component thereof) meets such requirements, (A) only the Clone Product Functionality will be deemed a Clone Product and (B) the Existing Product Functionality will not be deemed a Clone Product. For purposes of this subsection (i), “Clone Product Functionality” means features or functionality of such new version (other than Existing Product Functionality) that add to meeting the requirements set forth in the first paragraph of this definition.
• (ii) Notwithstanding subsection (i) above, Wine, OpenXchange, StarOffice and OpenOffice are not subject to such subsection (i); however, the exclusion of such products from such subsection (i) is without implication as to (and shall not affect the determination of) whether such products (or any features or functionality thereof) are Clone Products. Further, no inference shall be drawn from the reference to the above products in this subsection as to whether such products are Clone Products, and this subsection (ii) and subsection (i) shall not be admitted or referred to in evidence in any dispute regarding whether any of the products referred to in this subsection is a Clone Product.

 

"Covenant Term" means, for each specific copy of a Covered Product, the duration of time that such product is supported by Novell as authorized by the Certificate. For the avoidance of doubt, each specific copy of a Covered Product has its own Covenant Term not to exceed a (3) year continuous period.

 

"Covered Patents" of Microsoft means Patents entitled, in whole or in part, to an effective filing date on or before the end of the Patent Term (i) which Microsoft or any of its Subsidiaries now or hereafter during the Patent Term owns or controls, or (ii) under which (and to the extent to which) Microsoft or any of its Subsidiaries now or hereafter during the Patent Term has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third

 

"Covered Product" means those portions of a product that meet the requirements of a Certificate and are supported by Novell except for Clone Products and Other Excluded Products.

 

"Customers" means an entity or individual that utilizes a specific copy of a Covered Product that meets the requirements of a Certificate and is supported by Novell under a support agreement provided by redeeming the Certificate. Entities or individuals are not Customers when they (1) resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the Covered Product they otherwise utilize as a Customer; or (2) resell, license, supply, or distribute the output of SDKs or embedded developer kits they utilize as a Customer. For avoidance of doubt, an entity or individual cannot qualify both as a Customer and Distributor for use of the same copy of any given product or service.

 

"Distributors" means resellers and distributors to the extent they are authorized by a Party (directly or indirectly) to resell, license, supply, distribute or otherwise make available Covered Products of Novell (whether the resale or distribution is on a stand-alone basis, on an OEM basis as bundled with hardware or other software of the reseller or distributor, or otherwise).

 

"Effective Date" means November 2, 2006.

 

"Extendible Third Party Patents" means any Patent entitled, in whole or in part, to an effective filing date on or before the end of the Patent Term which is not owned or controlled during the Patent Term by Microsoft or any of its Subsidiaries but under which Microsoft or any of its Subsidiaries now has or hereafter during the Patent Term obtains the ability or right to grant a covenant not to sue or other freedom from suit to Customers of Novell, where the grant of the covenant or other freedom from suit is contingent on the payment of consideration to a third party which (a) is not a Subsidiary of Microsoft or (b) at the time an invention claimed by the Patent was conceived, was not a Subsidiary of Microsoft or an employee or contractor of Microsoft or its Subsidiaries.

 

"Other Excluded Products" means (a) office productivity applications (word processing, spreadsheets, presentation software, etc.) that are hosted by or running on a computer acting as a server for a connected client device, and (b) new features and functions in the following categories of products, but not to the extent the products embody operating system software or other enabling technologies: (i) video game consoles (e.g., Xbox video game consoles), console games, video game applications designed to run on a computer, and on-line video gaming services (e.g., Xbox live); (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 (also known as email servers); and (iv) unified communications.

 

"Patents" means any and all patents, utility models, patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.

 

"Patent Term" means the period beginning on the Effective Date and ending on January 1, 2012, unless (and for so long as) extended pursuant to Section 7.6 of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006 ("Cooperation Agreement"), provided that, notwithstanding the foregoing, the Patent Term will end on the date of termination of the Cooperation Agreement.

 

"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by Microsoft, but such entity shall be considered a Subsidiary only so long as such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by Microsoft, but such entity shall be considered a Subsidiary only so long as such ownership or control exists.

Joint Letter to the Open Source Community From Microsoft and Novell

 

Published: November 02, 2006

 

On the day of the public announcement of the Novell / Microsoft collaboration agreement, the following letter was posted on this site as an open letter to the community from Novell. The text represents both Microsoft and Novell’s commitments to the agreement and was jointly authored. You may find a mirror copy of this letter on Novell’s website. We appreciate the feedback from the community regarding this letter and have amended our site in response.

 

Today's announcement of the collaboration between Microsoft and Novell marks the beginning of a new era: Microsoft is coming to terms with Linux.

 

Over the past six years, we've seen the effect that the open source community has had on Microsoft. They've shared some source code, driven community projects like IronPython and WiX, and they continue to work with a number of open source software companies like JBoss, SugarCRM, XenSource, and Zend.

 

However, today's news is a big step forward for the Linux market. Today, for the first time, Microsoft is collaborating directly with a Linux and Open Source software vendor. With this news, Microsoft is saying that Linux is an important part of the IT infrastructure.

 

More importantly, Microsoft announced today that it will not assert its patents against individual, non-commercial developers. Novell has secured an irrevocable promise from Microsoft to allow individual and non-commercial contributors the freedom to continue open source development, free from any concern of Microsoft patent lawsuits. That's right, Microsoft wants you to keep hacking.

 

Why is Microsoft doing this? Because they recognize that customers today are deploying mixed source solutions - Windows and Linux - and they want these solutions to work well together. This will help Microsoft by making it easier for Linux customers to deploy Windows in their Linux environments. Microsoft is committing significant resources to promote joint Windows-Linux solutions.This is all about co-existence and giving customers greater choice.

 

The collaboration has multiple pieces:

 

Patent coverage

• The concern over potential patent infringements makes some people nervous about the deployment of open source technologies.
• To do this, Novell and Microsoft are providing covenants to each other’s customers, therefore releasing each company from the other’s patent portfolio.
• What it really means is that customers deploying technologies from Novell and Microsoft no longer have to fear about possible lawsuits or potential patent infringement from either company.

Virtualization

• Microsoft and Novell will collaborate in enhancing and developing the functionality required to efficiently virtualize Windows on Linux and Linux on Windows.
• Both will now be first class citizens in data centers, addressing the needs of mixed environments. They will both enjoy optimized, supported and tuned device drivers to maximize their potential.

Virtualization Management

• As a plus, the companies will work together to implement the necessary standards to manage data centers that run mixed environments (WS-Management).
• Novell will develop tools to manage virtualized Windows machines, and Microsoft will develop tools to manage virtualized Linux systems.

Office Open XML

• Novell engineers have been working for the last year together with Microsoft engineers through the ECMA TC45 working group in producing a complete specification that would allow for interoperability across office suites.
• Novell will develop the code necessary to bring support for Office Open XML into OpenOffice, and we will contribute that support back to the OpenOffice.org organization. We will also distribute the Office Open XML plug-in in our own edition of OpenOffice. In addition, we will participate in the Open XML Translator open source project.

Collaboration Framework

• One of the most important components of the collaboration agreement today is that we have setup a framework between Novell and Microsoft to discuss future collaborations.
• Today's announcement marks the beginning of a new era, and should not be considered a limitation. With the collaboration framework in place, we will periodically evaluate areas where we can work together improving the interoperability of our products.

Mono, OpenOffice and Samba

• Under the patent agreement, customers will receive coverage for Mono, Samba, and OpenOffice as well as .NET and Windows Server.
• All of these technologies will be improved upon during the 5 years of the agreement and there are some limits on the coverage that would be provided for future technologies added to these offerings.
• The collaboration framework we have put in place allows us to work on complex subjects such as this where intellectual property and innovation are important parts of the conversation.
• Novell customers can use these technologies, secure in the knowledge that Microsoft and Novell are working together to offer the best possible joint solution.

This is a watershed moment for Linux. It fundamentally changes the rules of the game. We're really excited about this deal, and we hope you are too.

Microsoft Statement on Novell Agreement

 

Published: November 20, 2006

 

Microsoft and Novell provided an additional perspective on intellectual property issues in a landmark November 2nd agreement.

 

"Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement.

 

"Both of our companies are fully committed to moving forward with all of the important work under these agreements. The agreements will advance interoperability between Windows and Linux and put in place a new intellectual property bridge between proprietary and open source software. Customers and participants throughout our industry will clearly benefit from these results.

 

"We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place."

 

Microsoft Corporation

Microsoft & Novell Interoperability Collaboration - Patent Cooperation Agreement

 

Published: November 02, 2006

 

Covenant to Customers

 

Microsoft, on behalf of itself and its Subsidiaries (collectively "Microsoft"), hereby covenants not to sue Novell’s Customers and Novell’s Subsidiaries’ Customers for infringement under Covered Patents of Microsoft on account of such a Customer’s use of specific copies of a Covered Product as distributed by Novell or its Subsidiaries (collectively "Novell") for which Novell has received Revenue (directly or indirectly) for such specific copies; provided the foregoing covenant is limited to use by such Customer (i) of such specific copies that are authorized by Novell in consideration for such Revenue, and (ii) within the scope authorized by Novell in consideration for such Revenue. For the avoidance of doubt, the "received Revenue" requirement above is deemed satisfied with respect to such Customer receiving from Novell a free update to a component of a specific copy of a Covered Product for which Novell has previously received Revenue, but is not satisfied with respect to such Customer receiving a free upgrade or a new version of such specific copy unless Novell has received Revenue (directly or indirectly) for such upgrade or new version.

 

For specific copies of Covered Products distributed by Novell for Revenue before the end of the Term, the foregoing covenant shall apply as to all Covered Patents, including Captured Patents. For specific copies of Covered Products distributed by Novell for Revenue after the end of the Term, the foregoing covenant shall apply only as to Captured Patents.

 

Also, the foregoing covenant will apply to Novell’s customers' and its developers' use of copies of Covered Products distributed by Novell that are in development (including, without limitation, work in process; trial, alpha, beta and release candidate versions; and other versions of products intended for but not yet generally released for Revenue on a commercial basis), even if Novell does not receive Revenue in connection therewith, provided that such copies are solely provided for development, testing or evaluation purposes and support thereof, if any, continues for no longer than one-hundred eighty (180) days from distribution. In any case, the covenant granted pursuant to this paragraph shall expire as to such customers and developers one-hundred eighty (180) days from distribution to such customers and developers.

 

Definitions of capitalized terms used above may be found in the Definitions section below.

 

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006; however, the covenant as set forth above will continue as to specific copies of Covered Products distributed by Novell for Revenue before such update.

 

Definitions – Covenant to Customers

 

"Captured Patents" means Covered Patents entitled, in whole or in part, to an effective filing date on or before January 1, 2001 (i) which a granting party or any of its Subsidiaries owns or controls as of the Effective Date, or (ii) under which (and to the extent to which) a granting party or any of its Subsidiaries has as of the Effective Date the ability or right to grant a release, covenant not to sue or other freedom from suit.

 

"Covered Patents" means Patents entitled, in whole or in part, to an effective filing date on or before the end of the Term (i) which a granting party or any of its Subsidiaries now or hereafter during the Term owns or controls, or (ii) under which (and to the extent to which) a granting party or any of its Subsidiaries now or hereafter during the Term has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.

 

"Covered Products" of a Party means all products and services sold, licensed, supplied, distributed or otherwise made available by such Party except for Foundry Products, Clone Products and Other Excluded Products (collectively, "Excluded Products").

 

"Customers" means an entity or individual that utilizes a specific copy of a Covered Product (or, for purposes of Sections 4.2 and 7.3, any product or service of a Party) for its intended purpose as authorized by a Party in consideration for Revenue (directly or indirectly) to such Party. Entities or individuals are not Customers when they (1) resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the Covered Product (or, for purposes of Sections 4.2 and 7.3, any product or service of a Party) they otherwise utilize as a Customer; or (2) resell, license, supply, or distribute the output of SDKs or embedded developer kits they utilize as a Customer. For avoidance of doubt, an entity or individual cannot qualify both as a Customer and Distributor for use of the same copy of any given product or service.

 

"Revenue" means any consideration to a Party that is reasonably attributable to a Covered Product (or, for purposes of Sections 1.7(i) and 4.2, and the definition of "Customers" as used only in Sections 4.2 and 7.3, any product or service of a Party). Revenue includes without limitation (a) consideration for any (i) sale or license of Covered Products or the sale or license of the services of Covered Products, (ii) warranties, indemnification or updates for Covered Products, (iii) maintenance, upgrades, upgrade protection, service, premium service packages, subscription, consulting, installation and support contracts for Covered Products, (iv) user or device access rights to Covered Products, and (v) hosting by a Party of Covered Products for the benefit of third parties, and (b) for purposes of Sections 1.7(i) and 4.2, and the definition of "Customers" as used only in Sections 4.2 and 7.3, the consideration described in the foregoing subsection (a) with respect to any products or services of a Party.

 

"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only so long as such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only so long as such ownership or control exists.

 

"Term" means the period beginning on the Effective Date and ending on January 1, 2012, unless (and for so long as) extended pursuant to Section 7.6, provided that, notwithstanding the foregoing, the Term will end on the date of termination of this Agreement.

 

"Effective Date" means November 2, 2006.

 

"Patents" means any and all patents, utility models, patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.

 

"Extendible Third Party Patents" means any Patent entitled, in whole or in part, to an effective filing date on or before the end of the Term which is not owned or controlled during the Term by a granting party or any of its Subsidiaries but under which the granting party or any of its Subsidiaries now has or hereafter during the Term obtains the ability or right to grant a covenant not to sue or other freedom from suit to customers of the other Party, where the grant of the covenant or other freedom from suit to the customers of the other Party is contingent on the payment of consideration to a third party which (a) is not a Subsidiary of the granting Party or (b) at the time an invention claimed by the Patent was conceived, was not a Subsidiary of the granting Party or an employee or contractor of the granting Party or a Subsidiary of the granting Party.

 

"Party" means either Microsoft or Novell and their respective Subsidiaries.

 

"Foundry Product" means a product which is either (a) designed by a third party (or designed for a third party other than by a Party) without substantial input from a Party ("Acting Party") and made, reproduced, sold, licensed, or otherwise transferred by the Acting Party, on essentially an exclusive basis, (i) to that third party, or (ii) to that third party’s customers, or (iii) as directed by that third party; or (b) 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. For purposes of clarification of subsection (a) of this Section 1.8, the parties acknowledge that a product as to which a Party has contributed substantially to the development will have been designed with substantial input from the Party and, accordingly, shall not constitute a Foundry Product.

 

"Clone Product" means 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 ("Prior Product") and that (a) has the same or substantially the same user interface as the Prior Product, or (b) implements all or substantially all of the Applications Programming Interfaces of the Prior Product. Those portions of a product that are otherwise licensed to one Party from the other Party, or 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.

• (i) The Parties agree that versions of products sold, licensed, supplied, distributed or otherwise made available by a Party for Revenue before the Effective Date (or major components thereof) ("Existing Products") and new versions of such Existing Products to the extent they incorporate features and functionality of Existing Products ("Existing Product Functionality") will not be deemed Clone Products. For purposes of clarification, the parties acknowledge that Existing Product Functionality may be considered in determining whether a new version of an Existing Product (or major component thereof) meets the requirements set forth in the first paragraph of this definition, provided that, even if the new version (or major component thereof) meets such requirements, (A) only the Clone Product Functionality will be deemed a Clone Product and (B) the Existing Product Functionality will not be deemed a Clone Product. For purposes of this subsection (i), "Clone Product Functionality" means features or functionality of such new version (other than Existing Product Functionality) that add to meeting the requirements set forth in the first paragraph of this definition.
• (ii) Notwithstanding subsection (i) above, Wine, OpenXchange, StarOffice and OpenOffice are not subject to such subsection (i); however, the exclusion of such products from such subsection (i) is without implication as to (and shall not affect the determination of) whether such products (or any features or functionality thereof) are Clone Products. Further, the Parties agree that (A) no inference shall be drawn from the reference to the above products in this subsection as to whether such products are Clone Products and (B) this subsection and subsection (i) shall not be admitted or referred to in evidence in any dispute regarding whether any of the products referred to in this subsection is a Clone Product.

 

"Other Excluded Products" means (a) office productivity applications (word processing, spreadsheets, presentation software, etc.) of the Parties that are hosted by or running on a computer acting as a server for a connected client device, and (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 (e.g., Xbox video game consoles), console games, video game applications designed to run on a computer, and on-line video gaming services (e.g., Xbox live); (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.

 

"Distributors" means resellers and distributors to the extent they are authorized by a Party (directly or indirectly) to resell, license, supply, distribute or otherwise make available Covered Products (or, for purposes of Section 4.2, any product or service of a Party) of the Party (whether the resale or distribution is on a stand-alone basis, on an OEM basis as bundled with hardware or other software of the reseller or distributor, or otherwise).

 

"Applications Programming Interfaces" means a set of one or more routines or interfaces provided by a software program (including an operating system, middleware or other software application) that are used to invoke or direct functions or services of such software program for use by other software programs. For avoidance of doubt, Applications Programming Interfaces does not include protocols used by software programs running on a computer system to communicate with another computer or software programs running on another computer.

Microsoft & Novell Interoperability Collaboration - Technical Cooperation Agreement

 

Published: November 02, 2006

 

The two companies will create a joint research facility at which Microsoft and Novell technical experts will architect and test new software solutions and work with customers and the community to build and support these technologies. The agreement between Microsoft and Novell focuses on three technical areas that provide important value and choice to the market:

 

Virtualization

Virtualization is one of the most important trends in the industry. Customers tell us that virtualization is one way they can consolidate and more easily manage rapidly growing server workloads and their large set of server applications. Microsoft and Novell will jointly develop the most compelling virtualization offering in the market for Linux and Windows.

 

Web Services for managing physical and virtual servers

Web Services and service oriented architectures continue to be one of the defining ways software companies can deliver greater value to customers. Microsoft and Novell will undertake work to make it easier for customers to manage mixed Windows and SUSE Linux Enterprise environments and to make it easier for customers to federate Microsoft Active Directory with Novell eDirectory.

 

Document Format Compatibility

Microsoft and Novell have been focusing on ways to improve interoperability between office productivity applications. The two companies will now work together on ways for OpenOffice and Microsoft Office users to best share documents and both will take steps to make translators available to improve interoperability between Open XML and OpenDocument Formats.