Tuesday, November 21, 2006

Once Again: Microsoft | Novell | Patents

Ok, Microsoft, its time for some new news out of Redmond. This harping on the Microsoft | Novell agreement is beginning to seem like there is nothing else happening in the world of computers.

One of my favorite bloggers, Mary Jo Foley, is still waiting to hear details from Microsoft. In This Microsoft-Novell partnership's not all it's cracked up to be, she wrote:
"At least Microsoft is admitting "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." When I asked Novell this very question, Novell officials did, indeed, publicly claim they were not admitting any infringement."
This is "patent-lawyer-speak" and has "always" been the way they handle such issues. I am speculating that Microsoft attorneys presented Novell with a list of patents that Microsoft, in Microsoft's estimation, Novell was infringing. Novell attorneys examined the patent claims and compared them to the product(s) in question.

To begin with, patent infringement litigation is extremely expensive and can run into the hundreds of thousands of dollars very quickly.

  • Producing the voluminous reams of documentation is both time-consuming and costly. Inventor records, computer hard drives, paper files all need to be gathered, copied and provided to the court and the opposing counsel.

  • Outside counsel is generally consulted for an independent evaluation. They charge hundreds of dollars per hour plus expenses.

  • This is without considering internal attorney and other staff time.

Is it warranted? If counsel evaluation determines that they do not believe there is patent infringement, it is likely worth the court battle. However, if there are any gray areas -- areas where particular claims are significantly broad that they could possibly be interpreted as covering the products in question, it would be in the best interests to negotiate a settlement.

Thus, the statements are correct. Novell is not admitting patent infringement as patent infringement can rightfully only be determined by a court of law. Finally, there is no infringement when there is a license to make, use or sell.

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