Open letter to Novell: Release the patent numbers!

by Sander Marechal

The technology industry has been in a buzz since last Monday's Fortune article in which Microsoft General Counsel Brad Smith claims that the GNU/Linux operating system infringes 235 of Microsoft's patents. If GNU/Linux indeed infringes so many patents then it's very curious that Microsoft refuses to tell the community which 235 patents those are.

Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them.

Many journalists and editors concluded from this that Microsoft knows it's 235 patents are bogus. But apparently Microsoft is willing to tell someone what those 235 are. They are telling the companies that they sign cross license deals with. Companies such as yourself, Novell.

Horacio Gutierrez, Microsoft vice president of intellectual property and licensing, said that while Microsoft won't discuss specific patents publicly, it has discussed them in private with companies such as Novell Inc. that struck deals with the company to exchange patent royalties for indemnification against litigation.

Source: The Washington Post.

Today you, Novell, claim that GNU/Linux infringes none of the 235 patents that Microsoft is talking about. From your own Novell Open PR blog:

While providing numbers is new, the claims that violations exists are not new. In response to similar Microsoft claims back in November, we put out an open letter from our CEO, Ron Hovsepian, that states our position on this issue. That position hasn’t changed.

From that open letter… “We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgement that Linux infringes upon any Microsoft intellectual property.”

I call on you, Novell, to tell the community which patents Microsoft thinks are infringed by the GNU/Linux operating system. You know the patent numbers. Microsoft gave them to you. Now release them so we all can publicly prove what you claim: That GNU/Linux infringes no Microsoft patents. If you do, then you may gain back some of the credibility in the community that you lost when you signed the cross-license deal with Microsoft last year.


Sander Marechal, GNU/Linux user and developer

Creative Commons Attribution-ShareAlike


#1 Anonymous Coward


My understanding (and I am NOT an attorney) is that these kinds of agreements usually require some sort of confidentiality clause. Therefore, Novell is probably unable to provide such information.

My question to you is: If the patent statement was made by MSFT, why don't you ask them to provide the information?

In my opinion (not a statement of fact), MSFT is succeeding at creating FUD by having everyone jump when they make statements like this. The best way to tackle this issue would be to ask them to either 'put up' and accept the future legal challenges or tell them to shut up. Why doesn't the FLOSS community work together and come up with a nice 'put up or shut up' campaing against MSFT?

#2 Sander Marechal (

If Novell is unable to provide that information, they should say so. They can make a statement like “We looked at all 235 patents and we believe them all to be bogus and easily invalidated”. That would be a much better statement than the mere “We distance ourselves from Microsoft on this matter” that they have been doling out lately.

As for asking Microsoft themselves: They already said that they will not release the list. The only 'put up or shut up' available to the community is a lawsuit for declaratory judgement or a patent lawsuit. I don't have the money to take Microsoft to court :-)

So, aside from filing a lawsuit or sacrificing a Linux distribution, the only way I see to get my grubby little hands on that list of patents is to convince someone else to release them.

#3 Anonymous Coward 2

From one anonymous coward to another, Glyn Moody has been screaming at MSFT to put up or shutup for a long time now. Back when he was doing all of this, everyone thought he was crazy. Now his words ring clear (to quote his linux journal article) "show us the code!"

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