Novell open-source patent sale clears final hurdle
German and US regulators have given their approval to the creation of a consortium, featuring Microsoft, EMC, Apple and Oracle, that will buy hundreds of open-source patents from Novell.
On Wednesday, the Bundeskartellamt (Federal Cartel Office, or FCO) said it had cleared the creation of CPTN Holdings, which will buy 882 patents from Novell. The deal was announced as part of the sale of Novell to Attachmate, but it does not include Novell's Unix patents. The consortium's creation had gone up before the FCO before, at the end of last year, but the companies then withdrew their application and reapplied.
FCO president Andreas Mundt said in a statement on Wednesday that modifications made since the original application "have met the concerns expressed in Germany and the United States" regarding potential anticompetitive effects on the open-source market. The US Department of Justice (DoJ) effectively cleared the deal a week ago, although it only confirmed its approval on Wednesday.
The plan is now for CPTN to buy the 882 patents and distribute them among the four companies involved. All four will receive licenses for all the patents, subject to some conditions laid out in the amended application. Three months later, CPTN will be dissolved.
Under the amendments that led to the deal being cleared, "Microsoft will sell its future share of the patents in advance on to Attachment", the FCO said. EMC will also not get to share in the 33 virtualisation-related patents. The parties' contracts have also been changed to "keep the Novell patents open for open-source suppliers," the FCO said, noting that this was crucial to allaying the regulators' competition concerns.
This openness will be ensured by the patents being acquired under the GPLv2 and Open Invention Network (OIN) licenses. CPTN will not be able to limit which, if any, of the patents are available under OIN, and neither CPTN nor its owners will be allowed to influence or encourage either Novell or Attachmate to modify which patents are available under OIN.
"As a consequence the Bundeskartellamt and the DoJ were able to clear the formation of CPTN and its acquisition of the patents from Novell," the FCO said.
In a separate statement, the DoJ said that, "as originally proposed, the deal would jeopardise 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".
"Although the department will allow the transaction to proceed, it will continue investigating the distribution of the Novell patents to the CPTN owners," the DoJ said.