March 24, 2009

Just two days before Microsoft and Novell signed a controversial deal in 2006, the two sides still hadn't figured out a way to make peace over Linux without violating the licensing terms that govern the open-source operating system

The terms of the GNU General Public License made it tough for Microsoft to get paid a royalty for each copy of Linux that Novell sold and also made it tough for Microsoft to offer patent protection to Novell without giving it to all users of Linux. But, just hours before it hoped to announce a deal, Microsoft workers thought up an end-run around the provision. Instead of protecting Novell, Microsoft hit on the idea of offering legal protection to Novell's customers.

Even after they did reach an accord, Microsoft still had trouble signing off. With the press waiting for a news conference that was already behind schedule, Microsoft general counsel Brad Smith found that the pen he had been given to sign the deal was out of ink. Smith looked around, spotted a whiteboard and grabbed a marker, which he used to finish signing the contract.

That story is just one of many interesting tales in "Burning the Ships," a new book that traces Microsoft's moves from intellectual property novice to patent powerhouse. And the author of the book should know. It's co-written by Marshall Phelps, the former IBM lawyer who Microsoft recruited to lead its intellectual property licensing efforts.

The timing of the book is interesting, of course, given Microsoft's recent suit against Tom-Tom, which alleges, among other things, patent infringement for Tom-Tom’s use of the Linux kernel in its mapping products.