In addition, Novell employees have repeatedly championed Microsoft technologies, praising the OOXML standard for office applications and developing and promoting Mono, a FOSS version of the C# programming language, and Moonlight, a FOSS version of Silverlight -- despite the fact that these technologies might become the future subject of patent infringement claims. Moreover, in supporting Go-OOO, an independent development group for OpenOffice.org, Novell has helped to undermine one of the major projects required to promote the FOSS desktop.
After such treatment of the community, Novell should not expect any help. If anything, the fact that Novell, which tried to evade any patent infringement claims from Microsoft, should now be facing another patent infringement claim seems poetic justice.
Under these circumstances, the community should not contribute to Novell's defense. Red Hat's involvement is unfortunate, but not aiding Novell and keeping true to your beliefs is a higher priority than helping with the patent case.
If I channel the anti-patent lobby, the argument seems equally compelling. For years now, the FOSS community has been concerned that patents would be used against it. Nor is this concern an empty fear. In the SCO cases that have been chronicled in such detail by the Groklaw site (cases in which, interestingly enough, Novell appears as a defender of the community), in the Trend Micro case against Barracuda Networks, and now the case brought by IP Innovation, proprietary software interests and patent trolls have shown themselves more than willing to use patents to undermine free software.
Moreover, such uses of patents are an abuse of the system. While American patent law was originally designed to encourage innovation by rewarding innovation, these days it is being used to discourage innovation and to establish a monopoly.
Not only that, but patents are a particularly poor idea in software. The idea of patenting programming code is only slightly less ridiculous than patenting numbers. And, practically speaking, considering the interoperability of so much software these days, software patents could prevent anyone from writing new code that did not infringe on some patent.
Under these circumstances, what Novell has or has not done is irrelevant. What's important is to protect the community, and to resist the use of patents to create monopolies and intimidate possible competitors or to give patent trolls a source of income. If helping the defenders in this case also helps Novell, that is a relatively unimportant side effect.
By chance or design, Red Hat and Novell made their request in the way that would most likely give useful results. Neither can be faulted for looking after its own best interests; that is, after all, thats what companies do, especially publicly traded ones.
All the same, a part of me wishes that the request had been made in both companies' names, so that we could see how the community would react. It is hard to see any middle ground between the two lines of reasoning that I've outlined, and which line people chose might indicate their motivations for supporting FOSS.
I suggest that those who decided to follow the anti-Novell lobby would be idealists, for whom remaining true to their beliefs is more important than the real world consequences of such action. Perhaps, too, they would be too focused on their opposition to Novell and Microsoft to put aside their dislike for any other cause.
By contrast, the anti-patent supporters might have proven be equally idealistic, but more accustomed to the give and take of human interaction. While they might have reservations, they might still be willing to ally themselves with Novell because fighting patents is more important than consistency in their beliefs.
We can never be sure, of course, because the community never had the chance to choose (I admit I delayed this story until after the request for prior art received responses, which tells you which camp I fall into).
Still, dilemmas can be revealing, simply because they are so uncomfortably complicated. Even though this dilemma never happened, you might ask yourself: what logic would have convinced you in the situation, and what does your answer say about why and how you support FOSS?