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Open source campaigners urge investigation of Novell patent sale

OS advocates concerned about possible cartel of software giants

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Open source software advocates have asked a German competition law regulator to investigate the purchase of patents owned by Novell by a consortium led by Microsoft and including Apple, Oracle and EMC.

US-based open source advocacy body the Open Source Initiative (OSI) has said that it was informed that the German Federal Cartel Office was "open to receive comments from the public" about the purchase. It has written to the office to express its concerns.

"The fact that Microsoft was leading the takeover of Novell’s patents was itself alarming to the open source community, but when it was revealed that Microsoft had recruited Oracle, Apple, and EMC to be co-owners of the patents, the OSI Board felt compelled to request that competition authorities take a closer look at the proposed transaction," said a blog post by Michael Tiemann, the president of the OSI.

Novell is being bought by Attachmate. The deal involves the separate sale of Novell's patent portfolio to CPTN, the consortium headed by Microsoft. Novell has agreed to sell 882 patents to CPTN for $450 million.

Novell had previously acquired SuSE, a commercial open source software distributor. Patents involved in that deal make claims over open source software but have never been used against open source developers, the OSI said.

In its letter to the German authorities (four-page/180KB PDF), OSI said that it is concerned because the deal with CPTN puts patents with claims on some elements of some open source software in the hands of companies that compete with that open source software.

"The founders and leaders of CPTN have a long history of opposing and misrepresenting the value of open source software, which is at the heart of Web infrastructure and of many of the most widely used software products and services," it said. "The sole or leading competition for several products from the CPTN principals are open source."

The letter continued: "Principals have acknowledged that Linux and Open Source is a major threat to their business and have made hostile statements towards open source. Microsoft and Oracle both call out open source as a competitive threat in their most recent [regulatory] filings."

The letter warns of "potential collusion" between the competing proprietary software companies and said that competition would be well served by an investigation by the German authority.

"The Open Source Initiative is concerned that the proposed recipient of Novell’s patent portfolio, CPTN, represents a serious threat to the growing use of open source software throughout business, government, academia, and non-profit organizations worldwide," it said. "We urge the regulatory authorities to recognize the significance of open source software as they consider the CPTN transaction and urge them to investigate it further."

Though the patents at issue are the same, the OSI said that the use of them by CPTN might be quite different, and dangerous, compared to the use made of them by Novell.

"The creation of CPTN represents a MAJOR disruption to the competitive landscape," said the OSI letter. "Whereas Novell was sincere in promoting and participating in open source software development and had an incentive to maintain their patent assets as a defensive portfolio, CPTN has all the motives and opportunity to do the opposite."

"They have no incentive to support open source as a competitive alternative to proprietary software. CPTN creates a cover to launch patent attacks against open source while creating for each principal a measure of plausible deniability that the patent attack was not their idea," it said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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