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OSI fears for Linux if Novell patents land with Apple, Oracle

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In buying up a stash of Novell patents, Apple and Oracle could choke rivals in the virtualization, middleware, mobile, and media markets, according to the Open Source Initiative.

German regulators are looking into the proposed sale of 882 Novell patents to CPTN Holdings, Microsoft-led group that also includes Apple, Oracle, and EMC, and OSI president Michael Tiemann has warned that Oracle could use the patents to shut down virtualization innovation in Linux and attempt to shift the market to Solaris - which Oracle acquired through its acquisition of Sun Microsystems.

He has also said that the OSI is "very concerned" that Apple could make it "difficult or impossible to create competitive mobile platforms or mobile applications developed as open source."

While it is not known what particular patents Apple and Oracle are getting, Tiemann based his fears on the companies' recent actions and statements.

Oracle, for instance, has sued Google, claiming that Android violates its Java patents. "Oracle's prior actions suggest that Oracle may be planning to create a dominant position in Mobile at Google's expense," Tiemann said.

Meanwhile, Steve Jobs has threatened to "go after" Ogg Theora and other open source video codecs. "It seems plausible that Apple's most credible competitor in the mobile market, Android, would be vulnerable to challenge by the patents involved in the CPTN-transaction," Tiemann said.

Tiemann's statement was a response to a disclosure from Germany's Federal Cartel Office (FCO) that Microsoft and EMC have made additional statements about what they intend to do with the patents. Microsoft plans to return the patents its buys from Novell back to Attachmate, Novell's new owner, and merely license the portfolio. EMC says that its share of the patents will not relate to virtualization. EMC owns VMware.

CPTN has told the FCO it will cease to exist once the patents are distributed, and it will not live on as a patent buyer or enforcer.

That leaves just Oracle and Apple. Based on the fact that they are not mentioned by the FCO, it sounds like they've made no commitment on what they intend to do with the patents. Presumably, they will keep them.

Tiemann noted that both Apple and Oracle could address concerns by stipulating fully-paid, worldwide, royalty free licenses to any software covered by an OSI-approved license.

"Absent such a promise, it would be far too easy for either of them to harm not only a specific open source project (such as Open Manager, a file browser optimized for mobile) or an open platform (such as Android), but the larger open source ecosystem, whose goals of eliminating vendor lock-in are at odds with the de-facto result of monopoly: perfect vendor lock-in," Tiemann said.

Either way, as patent watcher Florian Mueller has rightly pointed out, the deal remains sweet for all of the four companies as it means they will never have to defend themselves against any Novell patents, should a case ever be brought. ®

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