I'm trying to understand what constitutes the issue in Microsoft-Novell agreement, and why is it so important that GPLv3 has a special clause to address such agreements in the future.

So far I understood that Microsoft is paying Novell in exchange for a joint patent agreement on Office products. Software patents are indeed evil, but I fail to see what's so special in this case. Novell also agreed to improve interoperability with MS Office by including OpenXML/ODF translator in OpenOffice, which seems perfectly normal - many OSS projects are sponsored by corporations, and sponsors naturally have a say in what features get implemented.

Finally, I don't understand how these issues (if I correctly understood what the issues are) are addressed by this GPLv3 clause quoted by Wikipedia:

You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license [...]

What is this "discriminatory patent license" and who will receive it?

1 Answer 1


In one of the links from your wikipedia link, Eben Moglen, the attorney for the Free Software Foundation that created and oversees the GPL, said,

If you make an agreement which requires you to pay a royalty to anybody for the right to distribute GPL software, you may not distribute it under the GPL.

GPLv3 provides an exception so that Microsoft and Novell can distribute the software that they licensed to each other in a discriminatory manner. The exception only applies if the arrangement was made, or the patent license was granted, prior to 28 March 2007; this date chosen specifically to match the Microsoft/Novell agreement in question.

The answer to "What is this "discriminatory patent license" is the sentence immediately prior to the restriction that you quoted:

A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License.

The particular patent license(s) is Novell's and Microsoft's agreement not to sue each other over patents in Windows/Linux/Office software that they agreed to collaborate on.

The answer to "who will receive it?" is contained in the quote:

... under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license

That would be Microsoft and Novell, who received each other's work.

I am not a lawyer, so please take this as a layman's interpretation of some of the publicly available literature on the subject.

  • So basically it means that Microsoft and Novell's agreement is not compatible with GPLv3 while they are paying each other, right? But what if they were to make an agreement which doesn't involve royalties but still is discriminatory (i.e. they agree not to sue each other, but may sue other parties)? It seems that such an agreement be acceptable in terms of GPLv3, but still harmful for the free software. Commented Oct 5, 2015 at 7:20
  • 2
    I think it means that their agreement is compatible as a special case. No one can make such an agreement now, or anytime after the date specified in the exception (28 March 2007). I don't know about that "what if" loophole. Commented Oct 5, 2015 at 11:45

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