On Jan 1, 11:06 pm, Roy Schestowitz <newsgro...@xxxxxxxxxxxxxxx>
wrote:
> Microsoft paid Novell $355.6 million in 2007 - Who's Novell's daddy?
> ,----[ Quote ]
> | With all due respect to Novell, I'm not sure scavenging in my top
> | competitor's pockets for lunch money is something to crow about.
> | Interoperability is great. Being a vassal to Microsoft is not. (The word is
> | appropriate, Novell - look it up.)
One of the problems here is that we really don't know the true nature
of the agreements between Microsoft and the other vendors. We do know
that Microsoft paid a LOT of money to Novell, Red Hat, and other major
commercial Linux vendors. We know that most of those Linux vendors
had huge patent portfolios of their own, mostly defensive patents. We
know that all of these vendors were supporting the Open Patent
project, which was working to nullify existing patents that were
previously granted, and to challenge patent applications where the
applications are public.
We know that Microsoft **claimed** that there Linux violated over 100
Microsoft patents, but Microsoft has not disclosed which of these 100
patentst Microsoft think Linux is using.
What has been said by both sides is that Microsoft and these other
Linux distributors have agreed not to harass each other's customers.
It seems that Microsoft may have been more concerned about possible
violations of Linux intellectual property rights, than they were about
Linux violations of Microsoft intellectual property rights. It's even
possible that Microsoft has since discovered that a substantial number
of these "patent violations" are actually "patent nullifications"
where Linux or OSS had published prior art which was not mentioned in
the Microsoft patent application (a fraudulent application). Since
the Linux implementations and claims were widely published, and the
Microsoft implementations were carefully protected by nondisclosure
agreements, Microsoft would have to prove that someone who was
authorized to access the code gave that code to someone else without
Microsoft's permission, and that person knowingly published the
Microsoft code and falsely claimed that it was his own original work.
On the flip side, Microsoft would have to prove that their employee
was the true originator and inventor of the code in question, and that
that person had never accessed the published open source code.
Remember, in a civil suit, the judgement is usually based on the
preponderance of the evidence, and since the Linux code was published
and open, Microsoft's employees have a better chance of being exposed
to the Linux code, than the Linux publisher has of accessing the
proprietary Microsoft code. In the case of a "wash", the Judge has to
rule that both developers were able to intuitively derive similar or
identical code, which means that the patent has to be nullified.
Microsoft has much more to lose, since they have hundreds, perhaps
even thousands of patents, and many of those patents could be
nullified or worse.
The Linux vendors could probably win a court battle, but such battles
are often lengthy, expensive, and may involve injunctions while the
intellectual property rights are being sorted out.
> | How can Microsoft removing Novell from effective Linux competition possibly
> | be good for the market, or for Novell, long term? I understand that it's a
> | lot of money, and that's great.
I must admit, Novell has already pulled some bone-head moves. I
remember getting an incredible e-mail from a board member at Novell,
who told about how Microsoft's top people came to Novell and met with
the board while Ray Noorda was in China. They told the board that
they would stop work on a Windows NT server if Novell would cancel
work on a UnixWare workstation. They were given only a few hours to
make the decision, and if they didn't sign the contract, Microsoft
would announce their server almost immediately. Noorda could not be
reached (it was about 3 AM in China), and the board decide to take the
deal. When Noorda found out about it, he was furious. He eventually
"gave away" Unix, sold unlimited distribution rights to SCO, and
formed the Canopy Group, which was an incubator that provided the
funding for Caldera and TrollTech (KDE). Caldera eventually grew so
large that they became a major vendor of cash register systems,
especially in major franchises such as Pizza Hut, Burger King, Taco
Bell, and even McDonalds.
Many of these customers were former SCO customers and to staff the
support team, Ransom Love purchased the SCO support organization. The
problem was that SCO was tightly held by several enemies of Microsoft,
and Microsoft. When Caldera purchased the SCO organization, it
involved a stock swap, and Caldera had too many outstanding shares of
stock. Microsoft was able to stage a proxy fight and gain control of
the company. Their proxy agent fired Ransom Love and hired Daryl
McBride, who agreed to a $30,000 annual salary, and about 1 million
shares of SCO stock options at 75 cents per share.
> | In fact, I would assume that nearly every
> | penny of Novell's profit in 2007 came from Microsoft's wallet.
Novell has been having to try and balance the losses for a diminishing
Netware market while they grow and cultivate the Linux market and
revenue stream. Novell has also been very aggressively courting HP,
Dell, and Lenovo, and is probably working with Acer. Novell could sue
these OEMs for Clayton Act violations if they have signed agreements
that force them to exclude SUSE Linux from the market place as a
result of exclusionary license terms. In addition, if Novell wants to
make a stink, they could probably be very effective at getting the DOJ
order extended.
> | But this isn't a recipe for success. Microsoft does not have Linux's best
> | interests at heart.
Worse than that, Microsoft doesn't have Novell's best interest at
heart. Given any chance to do so, Microsoft would love nothing better
than to drive Novell into bankruptcy. The problem is that Novell has
one of the most successful commercial Linux distributions, a strong
and loyal customer base, and access to a market that is growing at
exponential rates.
Novell could make life very unpleasant for Microsoft, but Novell isn't
stupid either. They know that Microsoft was more worried about it's
own interests than Novells. Microsoft has much more to lose in a
conflict or confrontation with Novell. Look at how Novell took the
sails out of the SCO litigations. Novell was able to prove that they
had NOT sold all copyrights for UNIX to SCO. They sold SCO unlimited
distribution rights, but they retained ownership of the intellectual
property rights.
> The minute Novell becomes more of a threat to Microsoft
> | than Red Hat is, Novell will be shunted aside. In the meantime, Microsoft is
> | Novell's sugar daddy, making Novell a mere vassal to Microsoft.
Keep in mind that Microsoft has cut deals with Novell, Red Hat,
Linspire, and several other Linux distributors, especially those who
have made overtures to major PC OEMs.
Microsoft has lots to lose. If Novell or any of the other major Linux
distributors go to court on behalf of the states that want to extend
the court oversight, it could trigger another 5 years of court
monitoring and compliance control, and most of that will be under a
new president who might not have been "bought and paid for" by
Microsoft.
Microsoft could have many of it's patents nullified if it attempts to
enforce patents against Linux, and there are numerous OSS patents and
OSS related patents which could be used against Microsoft and it's
newest applications.
> http://blogs.cnet.com/8301-13505_1-9838466-16.html?part=rss&tag=feed&;...
>
> News about LANCOR v. OLPC
>
> ,----[ Quote ]
> | I know. You thought I was goofing off partying and drinking in the new year.
> | Not really. I was reading some cynical documents just filed in the LANCOR v.
> | OLPC litigation. Yes, it's begun in a Nigerian court. LANCOR has actually
> | done it. Heaven only knows it makes me want to drink. Guess what the Nigerian
> | keyboard makers want from the One Laptop Per Child charitable organization
> | trying to make the world a better place?
I'm not sure what Nigerian patent law is like. The OLPC keyboard is
hardly unique. It uses classic Linux keyboard drivers, and uses a
child-sized version of a common "flexible" keyboard. Even the keys
themselves are not unique.
> | $20 million dollars.
Patent claims often start with ridiculously high initial amounts, but
even if the patent is declared valid, the value of a patent is often
determined by a judge and/or a Jury. Microsoft has lost some serious
judgments in jury trials, but this may be because Microsoft isn't that
popular as a company, and lots of people perceive Microsoft as Bill
Gates and his Billions, and figure a $300 million judgement is "taxi
fare" for Gates. Juries tend to be more sympathetic to other
defendents, and very often, when someone puts a few hundred lines of
code in the context of 2 billion lines of code included in a Linux
distribution, the value of the software in question can often be
substantially diminished. There is even the possibility that a
Nigerian judge or Jury could limit the award to just a few hundred
dollars.
The problem with the whole patent law process is that there are so
many unscrupulous hackers who are "inventing" OSS software and having
an ambulance chaser lawyer file fraudulent poor-quality applications
which don't even attempt to disclose related prior art. Then the
ambulance chaser tries to file a hue lawsuit and hopes for a "quick
and dirty settlement", often for as little as a penny on the dollar,
just to avoid the costs of litigation and injunctions.
Of course, if the patent quality is poor, and it's easy to prove prior
art existed, then thinks can quickly get ugly, and the Judge can not
only dismiss the lawsuit, but he can also nullify the patent, and can
even award damages to the defendant, along with legal fees and court
expenses. Unfortunately, most of these ambulance chasers are
representing hackers with no tangible assets, which makes it real easy
to work for contingency, and nearly impossible to collect anything
from the plaintiff. At most, the defendent could collect 10% of the
plaintiff's income.
> | I kid you not. $20 million dollars in "damages".
Let's see, the OLPC goes for about $100 each. The code for the box,
as shipped, is about 1 billion lines, and the keyboard table is only
about 500 bytes. That would mean that the code is worth about 5 cents
per 1000 machines. If they sell 100 million machines, that might be
$5,000 in a legitimate settlement. To get triple damages, they would
have to prove that the OLPC developers knowingly stole the patented
code, and used it even though they knew that it was patented, and had
been told that it was patented prior to it's implementation.
In United States courts (and most other courts), the decision is based
on a preponderance of the evidence. There is a burdon to not only
prove that you filed for a patent, and were granted that patent, but
also that your patent was not based on prior art, and that the
patented invention could not have been intuitively derived by someone
knowledgable in the technology of the invention.
Often, a plaintiff will demand a Jury trial, hoping for a favorable
"home town jury". Often the bulk of the case will be argued in
preliminary hearings, with the defendant asking for as many
preliminary rulings as possible, dismissal of claims, suppression of
evidence, and preliminary limitations on scope. Often critical facts
are uncontested, but many of the claims can be challenged. In
addition, the defendent can file requests for disclosures, requiring
that all of the plaintiffs information related to the case be
provided, often to see if there is ANY merit to the case at all. Even
if it turns out that there is some merit to the claim, the defendant
can argue that the amount being demanded in the lawsuit is
unjustified. The defendant will often provide a very good and solid
argument for an amount that reflects a proportion of the price being
charged for the product.
The plaintiff will usually counter by arguing for a price it has
collected from someone else. He might have sold 5 copies to a buddy
for $200 each, just to provide justification of a claim of $200 per
machine, but that doesn't necessarily mean that the Judge will decide
that this is actually a reasonable value for the invention. In the
SCO case, SCO tried to claim that because they had gotten major
franchises to pay $700 per copy for even workstations and unit
servers, that SCO was entitled to $700 per copy for each copy of Linux
sold. The problem was that Linux was actually priced reasonably, and
the SCO price was actually less than $50 per employee/user, because
SCO was selling 1 server and simple terminals which were "used" by the
entire crew, over 3 shifts. Linux distributors, who sell millions of
copies of Linux (actually support contracts), know what they have to
charge to be competitive, what they have to include to offer a
competitive product, and know what the actual value "per line"
actually was.
Of course, if you are in a jurisdiction where the judge is the
plaintiff's brother-in-law, or otherwise has a conflict of interest,
but the local laws don't permit the defendant to request a change of
venue, things can get more ugly.
> http://www.groklaw.net/article.php?story=20071226210020415
The problem is that this is a whiplash ambulance chaser who is getting
funded by some deep pockets. It looks like they are trying very hard
to turn this into a war of attrition. Remember that $20 million in
Nigeria is worth substantially more - it's roughly the equivalent of
$2 billion in the U.S.A. economy.
Perhaps this is one of the reasons why the defendant often does NOT
request dismissal of all charges. They often don't request summary
judgments against claims that they can prove are fraudulent. This
allows the defendant to hunt for deeper pockets. Often, the plaintiff
is required to relinquish lots of funding related information,
including secondary sources of funding, any special infusions of cash
intended to "sponsor" the litigation, and any other resources or
assets that may be available in the event that the Judge rules the
suit to be fraudulent.
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