Antitrust concerns force changes to Novell patent sale

CPTN Holdings has altered some of the terms of their patent purchase from Novell in response to antitrust concerns raised by the U.S. Department of Justice (DOJ). The DoJ announced on Wednesday, that “as originally proposed, the deal would jeopardize the ability of open source software, such as Linux, to continue to innovate and compete in the development and distribution of server, desktop, and mobile operating systems, middleware, and virtualization products.”

I would really like to know what part of the patent sale (and which specific patents) were deemed to be a threat to the future development of the Linux operating system. We know that Red Hat’s voice was heard via the Open Source Initiative, as we reported last week. And it sure seems like IBM would have been likely to throw some cash at the issue. There was some fear that CPTN could be another SCO debacle.

The changes that have been made to the original CPTN patent arrangement include:

• Microsoft will sell back to Attachmate all of the Novell patents that Microsoft would have acquired, but will continue to receive a license for the use of all of the Novell patents, including those acquired by other entities or held by Novell.
• EMC will not acquire 33 Novell patents and patent applications related to virtualization.

But perhaps the most interesting, and what could be considered the biggest victory for the open source community are the following three changes to the deal:

• All of the Novell patents will be acquired subject to the GNU General Public License, Version 2, and the Open Invention Network (OIN) License.
• CPTN does not have the right to limit which of the patents, if any, are available under the OIN license.
• CPTN nor its owners will make any statement or take any action to influence or encourage either Novell or Attachmate to modify which patents are available under the OIN license.

Now that this is all settled, according to Novell documents filed Wednesday with the Securities and Exchange Commission, the new closing date for the sale is April 27, 2011. How settled does that leave you feeling?