Fear has been mounting in the open source community that Microsoft could start suing users any time for alleged patent violations.

That possibility became even more worrisome to some with a new disclosure by Sun this week regarding terms of its sweeping legal settlement with Microsoft, hammered out earlier this year.

According to the settlement between the two, Microsoft and Sun agreed not to sue each other or their respective customers for patent infringements that were alleged to have occurred before April 2004, as well as 10 years into the future.

But a new Securities and Exchange Commission (SEC) filing by Sun notes in the fine print that while Sun's StarOffice product is covered under this patent-infringement clause, OpenOffice is not. Not only is Microsoft allowed to sue any company – including Sun – for alleged patent violations connected with OpenOffice, but Sun is required to provide Microsoft with legal help in bringing such lawsuits against OpenOffice users.

The Seattle Post-Intelligencer was first with news of the OpenOffice exception clause.

StarOffice and OpenOffice are both desktop office suites. Sun's StarOffice is based on the OpenOffice source code, which is currently administered by OpenOffice.org. But StarOffice also includes some elements that are not part of OpenOffice, such as certain fonts, file filters, sorting functionality, clip art, and templates. Sun has said that future versions of StarOffice will be based on the OpenOffice source.

Market watchers cautioned against reading too much into the legal wording around OpenOffice.

"Microsoft is just keeping its options open," said Tom Moore, an intellectual property (IP) litigator with the Palo Alto, Calif., firm of Tomlinson Zisko LLP. "It would be a bad PR (public relations) more for them to go after Open Office licensees."

So, Will Microsoft actually go ahead and sue OpenOffice users? See Page 2 for More.

("Will Microsoft Sue OpenOffice Users?" Page 2)

Moore also noted that Microsoft, because of its own legal wrangling with the U.S. Department of Justice, needs to be even more careful than most in bringing patent lawsuits. "There's the concept of 'patent misuse' that could come into play," he said. "When a patent holder is a monopolist, they need to move a little more carefully than does the usual patentee."

"The language in the settlement contract in which Microsoft reserves the right to file a lawsuit against OpenOffice users is not all that unusual," concurred Yankee Group Senior Analyst Laura DiDio. "I believe Microsoft is hedging its bets and leaving all potential areas of redress open to the company."

"That said," DiDio continued, "I do not believe Microsoft is currently constructing a strategy or scenario in the near or intermediate terms to quash OpenSource via litigation. So while it's undeniably possible that Microsoft could sue OpenOffice users, the probability is low — at least for the next two years."

Currently, OpenOffice has barely made a dent in Microsoft's massive market share for desktop office suties. However, "if OpenOffice mounts a serious challenge to Office three, four or five years down the road and we see Office experiencing market erosion similar to that of NetWare against Windows NT, then Microsoft would fiercely defend its turf," she predicted.

OpenOffice.org community member Sam Hiser said he was not fazed by the new Sun disclosure regarding OpenOffice.

"The airing of part of the agreement in the SEC filing is not alarming in the slightest, and represents no change in the environment or disposition of the two companies concerned," said Hiser. "This was a legal agreement in which Sun and Microsoft agreed to license various technologies for certain periods of time. Such an agreement requires the parties to define which technologies are included and which are excluded. OpenOffice was merely excluded. Risks, if any are perceived, are the same as before."

"Sun's commitment to open-source remains the same as ever: strong," Hiser said, noting that Sun is an active participant in the OpenOffice, GNOME, Mozilla, and other open-source development communities.

Microsoft also downplayed the impact of the OpenOffice component of its Sun settlement, as did Sun.

"The agreement with Sun is a broad licensing agreement that spells out which technologies are included in the agreement, and which are not. The agreement does not convey anything about Microsoft's views regarding technologies outside the scope of this agreement," said a company spokesman in a prepared statement.

Sun spokeswoman May Petry called the patent clauses as specified in the Sun-Microsoft agreement "standard practice for any commercial company." "Open source code is conventionally provided without warranty and liability coverage, and OpenOffice.org is no different. OpenOffice.org is unchanged and not disadvantaged by the settlement."

StarOffice 7 shipped in October 2003. The next version of OpenOffice, version 2.0, is due out in March 2005.