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20 January 2011, 10:25

OSI and FSF ask US DoJ to intervene over Novell patents

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The Open Source Initiative (OSI) has announced that in collaboration with the Free Software Foundation (FSF) it has submitted a request to the US Department of Justice which asks the DoJ to intervene in the proposed sale of Novell's patents to the CPTN Holdings consortium. The CPTN consortium is made up of Microsoft, Oracle, EMC and Apple and the OSI / FSF submission contends in it's position statementPDF that the commercially confidential negotiations taking place between Novell, Attachmate and CPTN could "be used to hide nefarious intentions". The OSI / FSF say that Microsoft and Oracle are both on record as recognising open source as a competitive force, since they specify it as such in their 10K filings to the SEC. As they could potentially use the patents against competitors, there is a possibility that the patents could be used against open source projects.

The collaboration between the OSI and FSF, described as "unprecedented" by OSI board member Simon Phipps, is the first time the two software freedom organisations have worked together in a legal context. The 882 patents in question have been acquired by Novell over its long history and cover a wide spectrum of technology, including directory services, security and networking. The deal between Novell and Attachmate calls for these patents to be sold to the CPTN Holdings consortium as part of the transaction.

The OSI / FSF submission to the US DoJ is essentially an update of the request filed with the Federal Cartel Office (The Bundeskartellamt). There was confusion recently over the status of the CPTN Holdings filing with the Federal Cartel Office; the filing was made and then withdrawn, although this was said to be only a procedural step to allow the Attachmate acquisition of Novell to move forward. Other moves to raise attention to the CPTN acquisition have included questions being asked in the European Parliament. Patent activist, Florian Mueller, noted in his blog that the European Commission vice president and competition commissioner Joaquín Alumnia had responded to a question from a UK MEP about the CPTN patent acquisition. The commissioner said it was unlikely that the "proposed transaction requires a notification to the Commission under the Merger Regulation" and it was also unlikely that "the mere acquisition of patents" would infringe EU competition rules.


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