Sun Solaris Patent Release Questioned

A patent watchdog group is raising questions about the legal language behind Sun Microsystems’ recent open source offering called OpenSolaris.

The Public Patent Foundation (PUBPAT) is criticizing Sun and its CEO
Scott McNealy for potentially misleading developers into thinking Sun’s
latest open source contribution is free of any legal land mines.

In an open letter sent to Sun today, PUBPAT executive director Dan
Ravicher asked McNealy to clarify Sun’s position on its Solaris
announcement
this week. The company began releasing code to its
server operating system under its OSI-approved
Common Development and Distribution License (CDDL).

As part of the code launch event, McNealy boasted he is granting the
open source software community access to more than 1,600 of Sun’s
patents, and that the company would offer full indemnification against
any legal challenges to the code.

But nowhere in the CDDL language does it mention anything about the
number of patents being released. And Ravicher claims that Sun’s language about how it
can and cannot go after parties for patent infringement is
vague.

“The announcement was so broad in comparison to the related legal
documents that serious questions now exist regarding what rights the
public has to Sun’s patents,” Ravicher said in his letter. “Free and
open source software developers must have clear answers to these
questions so that they can understand what rights they have to Sun’s
patents.”

The letter to McNealy also questions Sun’s new relationship with
Microsoft and its impact on Sun’s legal
responsibility towards indemnification.

“Did Sun use or attempt to use its agreements with Microsoft in an
effort to protect free and open source software from Microsoft’s
patents? If not, why not?” Ravicher asked in his letter. “It’s just not
clear at this point.”

A Sun spokesperson was not immediately available for comment.

Ravicher, who serves as lead counsel for OSRM (Open Source Risk
Management) and whose client list has included Free Software Foundation
(FSF) and GNU Project founder Richard Stallman, said he was initially
pleased with McNealy’s generosity and is not
against opening the code to Solaris or Sun’s CDDL.

But Ravicher told internetnews.com that developers and even
proprietary software companies interested in the CDDL had to keep an eye on
the clauses, especially in sections 2.1b and 2.1d. Both pertain to
intellectual property claims under the “world-wide, royalty-free,
non-exclusive license.”

“Hopefully Sun can come out with more legal language in the CDDL that
supports the broader claims of the press release and what Mr. McNealy
said or they will restrict their claims,” Ravicher said.

The Sun situation is a stark contrast to a few weeks ago when IBM
released 500 patents
to the open source community, Ravicher said.

“IBM said what they did so there was no confusion on their intent,”
Ravicher said. “They said here are 500 patents; you can do with them
what you want. They were very clear. Sun on the other hand has said
something different than what it is really doing.”

The IBM patent release prompted Sun COO Jonathan Schwartz’s challenge
to IBM CEO Sam Palmisano to port its various software
applications, including DB2, WebSphere and Tivoli, to run on Sun’s
Solaris 10 operating system for the x86 platform.

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