Open Source Groups Call For Novell Patents Inquiry

Open source groups have contacted the German competition regulator and the US Department of Justice calling for an inquiry into the sale of Novell patents to a Microsoft-led consortium.

The Open Software Initiative (OSI) and the Free Software Foundation (FSF) have jointly contacted the German Federal Cartel Office and the US Department of Justice to express concern over a deal which emerged when Novell was bought by Attachmate in November.

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A similar appeal to the European Commission was rebuffed by its vice president and competition commissioner Joaquín Almunia.

“On the basis of the information currently available at this stage, it appears unlikely that the proposed transaction requires a notification to the Commission under the Merger Regulation,” he wrote.

“Furthermore, in addition to the consideration under the Merger Regulation, the Commission has currently no indication that the mere acquisition of the patents in question by CPTN Holdings would lead to an infringement of EU competition rules.

The sale of 800 patents follows the agreed sale of Novell to Attachmate. Several companies and syndicates showed interest in acquiring the documents. The front-runner is referred to by Novell merely as Party E but the FSF and OSI document names the hopeful buyer as CPTN Holdings.

The concern is that CPTN includes Microsoft, Apple, EMC and Oracle – several companies known to fiercely guard their patents. This could stunt the growing use of free/libre and open source software (Floss) by businesses, governments, academia, and non-profit organisations worldwide, the open source bodies say.

The document states: “The founders and leaders of CPTN have a long history of opposing and misrepresenting the value of Floss, which is at the heart of Web infrastructure and of many of the most widely-used software products and services… We urge the Department of Justice to recognise the significance of Floss and to investigate the threat posed to it by the CPTN transaction.”

The appeal outlines that the main concerns are based on the members of CPTN containing some of the principle and, in marketing terms, extremely powerful, opponents of the open source movement.

It points out that the GNU/Linux operating system specifically worries Microsoft and Oracle who have both named Floss as a competitive threat in their most recent annual reports.

“The proposed CPTN transaction represents a potentially new, and unprecedented threat to software freedom,” the organisations claim:

OSI and FSF hint that “nefarious intentions” could be hidden behind the secrecy of the deal. The implication is that CPTN could become a cartel to shape IT markets to suit its members.

There is a possibility, the document claims, that the patent holders will spread “fear, uncertainty and doubt” among users of open source software, could pick and choose who is granted licences to use the code, and may even pass it on to an independent “patent troll” to sue users of the patented code without making the CPTN members look bad.

The two organisations are now awaiting the reactions to their document. At the moment, the US Justice department has merely acknowledged receipt of the letter.