Why we’re concerned about the sale of Novell’s patents

On November 22, 2010, Novell agreed to be bought by Attachmate. While this move wasn’t particularly controversial, a detail raised eyebrows. At the same time, Novell announced that it was selling 882 of its patents to a consortium made up of Microsoft, Oracle, Apple and EMC.

This is worrying. Given that Novell has been involved in Free Software development for a long time, it’s likely that a number of the company’s patents cover important Free Software technologies. In many markets such as operating systems, desktop productivity, or web servers, Free Software programs are the key competitors to Microsoft’s offerings.

Allowing a consortium of Microsoft, Oracle, Apple and EMC to acquire patents that are likely to read on key Free Software technologies would do huge damage to competition in the software market. This is yet another reason to continue FSFE’s ongoing work against software patents.

Microsoft has used patent lawsuits to stifle competition from Free Software (e.g. TomTom), and has long used unsubstantiated patent claims for a continued campaign of fear, uncertainty and doubt against Free Software. Oracle also has used its patents aggressively against Google.

CPTN might also decide to sell the patents on to third parties. These could be patent trolls (“non-practicing entities”), or members of the consortium itself. In September 2009, Microsoft sold 22 patents related to GNU/Linux during an auction where only non-practicing entities were invited.

All these cases would be bad for competition in the software market. Microsoft in particular would be holding a stash of patents that everybody believes to relate to Free Software. At the very least, this would make their FUD campaign much more powerful. The company could also move into patent litigation much more aggressively, suing competitors out of the market. (Both the legal costs and the potential damages in a patent lawsuit are so large that they represent a serious threat to any company that’s not really, really large.) Or CPTN sell the patents to a patent troll and let that organisation do all the dirty work.

As a consequence, if the sale of Novell’s patents to CPTN is allowed to go ahead, this will significantly increase the legal threat level for Free Software.

This is why FSFE is extremely concerned about the sale of Novell’s patents to CPTN. We have shared our concerns with the German competition authorities on December 22, 2010.

CPTN apparently withdrew its filing with the German authorities on December 30. This could mean that the companies behind CPTN are changing their strategy, or that they’re merely reformulating their application. It definitely doesn’t mean that the danger is over.

The competition authorities should only allow this deal if there are effective measures in place to prevent the patents in question from being used against Free Software in an attempt to restrict competition. As an effective measure, CPTN Holdings should be required to make the patents in question available under conditions which allow their use in Free Software, including in programs distributed under GNU General Public License (GPL) and other copyleft licenses.