back to article Novell's Microsoft patent sale referred to regulators

Open sourcers have asked German authorities to probe a Microsoft-backed purchase of hundreds of patents owned by Novell as part of that company's purchase by Attachmate. The Open Source Initiative (OSI) has written to the German Federal Cartel Office saying that the purchase of 882 patents for $450m by never-heard-of-before …


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  1. Michael C


    Look, I'm no fan of software patents but the idea that the sale of (currently) valid patents is a threat to OSI? Look people, either the OSS you support is free and clear of infringing on patents, or it is not. Your failure to perform due diligence is your own problem if ANYONE comes along and challenges something you put out there in the world that turns out to be patented. If you want something to be open, and ensure it;s non-infringing, PATENT IT YOURSELF, then offer it freely to a patent pool under condition the software is offered under GPL or some such, THAT is how you protect OSS.

    These existing patents are simply changing hands. Unless you can prove this is a specific attempt by Microsoft to do something illegal, get off your soap box. The patents in question are known. If you think your stuff might infringe, you might want to start finding out how, and change your code as necessary. The sale isn't a threat to OSS, the existence of OSS that is infringing on valid patents is a threat to OSS. Anyone anytime with an infringed patent could bring a halt to your whole game.

    Besides, if the infringement was out there, why didn't Novel sue you themselves? Also, the patents novel has that they chose to open source, great, Microsoft now owns those patents, but that has no legal impact on the fact novel may have already chosen to place the code under OSS licensing, which Microsoft can never repeal (once it;s out, it;s out, and self sustaining). All it changes is who owns an essentially worthless piece of paper.

    1. Martijn Bakker

      @Michael C

      Unfortunately, that is not how software patents are used.

      In an ideal world, people would be allowed to patent their inventions, on the condition that they share their findings. This provides the inventor with some part of the profits an some measure of control over how their invention is used. In this ideal world, patent applications would be filed by inventors and judged on their technical merits before being granted.

      Meanwhile in the real world...

      Software patents are granted regardless of prior art, regardless of technical content and regardless of actual merit. If you feel one of your patents apply to any other party's product, you file a court suit for patent infringement. This has resulted in a situation where patent applications are filed by lawyers, automatically granted and their applicability is decided on in (often high profile and prohibitively expensive) law suits.

      The legal system being what it is, this means that patent suits tend to get settled out of court, in favour of the claimant with the most money. The patent system has devolved from a method of protecting your inventions (while encouraging the sharing of information) to a legalised means of extortion little different from your ordinary playground bully.

      Of course you can patent your own inventions. Good luck defending them against Microsoft, Apple or Oracle in an American court.

      When the most notorious playground bullies band together.. is it so unexpected that people will cry wolf?

      The pedant icon, since I'm mostly preaching to the choir here

  2. Antidisestablishmentarianist


    sniff. Very sad. Poor little open sauce afraid of getting caught out using someone else's recipe?

    1. Anonymous Coward

      You can't protect against patents

      It's not about being caught. As for the recipe, just look at Google's patent 7,853,586, titled "Highlighting occurrences of terms in documents or search results" dated December 15, 1999. Google claims the patent covers the use of memory to store instructions and a processor to execute the instructions in the memory to provide a tool bar within a browser application window.

      Pretty innovative stuff, huh ? Now something tells me Microsoft is using this recipe somewhere in some of their products. Dirty bastards!

  3. Anonymous Coward
    Paris Hilton

    Tsk! Don't be silly?

    "While that might have caused a sigh of relief, it still remains unclear what patents exactly are being sold to CPTN."

    Ans: why precisely those the buyer (and its owners) want to buy of course!

  4. Destroy All Monsters Silver badge
    Big Brother

    Intervention will need more intervention.

    The irony of the situation - a transfer of state-granted monopolies that may need to be examined by the state's purported monopoly buster!

    Didn't Hayek once write about that?

  5. Neal 5

    Well,instead of complaining,

    why doesn't the OSI do something positive instead. How about offering $450mill for say 880 of the patents, or $451 mill for all 882, lets see some competition there. After all, it's the only real way to beat anti-competitive behaviour.

    1. Evan Essence


      That's what the Open Invention Network exists for. Members include, ah, Novell.

  6. LDS Silver badge

    OSI could have bought Novell...

    ... if they were so afraid about its patents. Oh, open source has no money? I am very sorry for them. Maybe they should find a way to make money, insted of complaining everytime someone who does buys anything related to open source - it looks in the end very few can really sustain that model, despite much hype.

    1. Anonymous Coward

      I really hope you know what you're saying

      If open source would go for your money, they will no longer be open source. That's the whole point of FOSS: empowering you to break away from vendors twisting your arm and squeezing your wallet.

      For your information, Novell's patents were never put for sale as an individual asset. Microsoft orchestrated all this, gave some money to Attachmate so they can keep the patents without getting the whole stock and barrel. What I don't understand is why they accepted to share those patents with Oracle and Apple. Usually when you acquire a powerful weapon, you'd like to keep it for yourself just in case.

      1. Magnus_Pym

        I'll give you bloody title young lady!

        If Microsoft went alone then Apple and Oracle may get caught in the up-coming blanket lawsuit. Apple and Oracle have the money to fight.

      2. Peter Gathercole Silver badge

        ...keep to yourself

        The reason why consortia get involved with this type of thing is to prevent exactly what the OSI are trying to do.

        By definition, a consortia cannot be a monopoly (which only implies ONE controlling interest), so the monopoly legislation in western countries cannot apply.

        It is possible that you might be able to prove a cartel, but not at this stage of the proceedings, as cartels are normally challenged at the point where they fix prices or control access to a resource.

        I first noticed this type of thing with the cross-licensing of IP in the TCPA, now the TCG to prevent monopolies organizations to look too closely at the end-to-end DRM in the Trusted Platform, which threatens FOSS on the very computing systems we use.

        I suspect that you could probably quote the MPEG-LA and H.264 as another example of consortia controlling a technology to avoid allegations of monopoly.

  7. Dazed and Confused

    Microsoft, Oracle, Apple, EMC ...

    Agree to work together to pool patents and go after anyone else.

    Yeppp sounds like a Cartel to me.

  8. wayward4now

    Where's a Ray Norda when we need him?

    One thing is for sure, it sure wouldn't have happened had Ray Norda been at the helm at Novell. Ric

    1. Anonymous Coward
      Anonymous Coward

      Long for the days of Ray

      Novell only started doing patents after Ray was on his way out. If memory serves me, he thought copyright was adequate to protect the code written. But then after, it was really only to protect the company from other patents wielding companies, my stack is as big as yours, so we cross-license each other.

      Wonder how many of these are near to expiration ?

  9. Schultz

    Welcome to this world

    Most of you guys miss the point.

    If a dominant company / cartel buys assets which might increase its dominant market position, then this transaction may endanger competition or create a monopoly and should be stopped. That's why government creates regulating authorities which look at the market.

    So it's not about the ability of FOSS to make money, but it's about the ability of MS/Oracle/Apple to corner the market.

    Hello software companies, welcome to the business world. There are some rules we should tell you about ....

  10. Magnus_Pym

    lawsuit != valid patent

    As I understand it if you are accused of patent infringement you must defend yourself or pay up. You do not have to actually have to be found guilty you just have to be not found innocent.

    A 'big guy' patent owning company can get fees by simply threatening a law suit knowing that the 'little guy' cannot afford the defence. In this case you would be going up against at very big guy indeed So big that the three lead companies could probably buy America (If China was willing to sell) if they wanted. Who could stand the kind of legal blitzkrieg that they could unleash? The cabal just need to find one trivial but wide ranging patent that will stick and use it to extort a tiny fee form all those that can pay and 'hey presto, all those that cannot pay cannot even give their products away. Death of FOSS R.I.P, job done.

    Note: If they had one of these 'golden bullet patents' already they would have used it, Microsoft tried FAT but it didn't have the legs so they buy whatever they can find in search of one.

    Scary. No?

  11. alain williams Silver badge

    FLOSS special vulnerabilities to patents

    1) The code is available so others can look at it to find infringements, you can't do that with closed source s/ware.

    2) The code is given away and so big money not made, so authors cannot afford to defend themselves.

    People use FLOSS, to (amongst other things) save money not to make it. If this cartel kills the free competition -- what will happen to the prices that they charge and their rate of innovation ?

    1. Dazed and Confused

      More "FLOSS special vulnerabilities to patents"

      As the code is available it is possible for companies to patent code that is Open Source.

      The idea of patenting sw is not universally accepted, so it is possible that SW has been developed in an environment where it is (or was) not possible to patent.

      You then can end up having to pay to prove your innocence and prove you your prior art. This is difficult, time consuming and expensive.

  12. Neal 5

    re:anon coward/ I really hope you know what you're saying

    "If open source would go for your money, they will no longer be open source.".

    And this equates to any enterprise verion of Linux exactly how?.

    The money is there to do it, no one except MS,Apple and Oracle want to, why is that then?

    Actually for your information, all the patents except for the UNIX ones were all on the table to get the deal done in the first place.

  13. paulc

    Patently stupid

    Patents should NOT be allowed on what are ideas... (that includes algorithms, software, business processes etc.)

    there should always be a model or working example provided...

    The claims should be written in Simplified English (or relevant local language) NOT legal "gobbledegook".

    selling or other transfer of patents (except to relatives via a will) should also NOT be allowed...

    you can't afford to market your invention, then licence it to someone who can...

    a patent that isn't marketed within 5 years should be automatically void... also outlaw "submarine" patents, it has to be completely filed and issued within 5 years of first application.

    In case you haven't guessed... I F*£king hate software patents...

  14. FuzzyTheBear

    More on collaborating with private companies.

    The question i have is this :

    Are any of the patents covered in this sale actually based on the work of the community ?

    If so , there needs to be total disengagement from the community to private company projects that will take patents on their work.

    Do they sell stuff that was given by community members to Microsoft so they can now use it as weapons against those who made the inventions in the first place ?

    Whatever way you look at it , it smells bad and we need to pause any contributions to private

    company projects that take patents on the work of the community.

    The whole thing smells rotten to the core.

  15. NoneSuch Silver badge

    Ban them... Ban them NOW

    Get rid of software patents totally.

    They only serve to monopolize ideas and innovation and threaten future creativity.


  16. Steve Stites

    Open Source is not a patent aggressor

    IBM is very concerned about the Novell software patents passing into hostile hands. They are willing to go to the immense trouble and expense to try to reverse the sale. IBM has chosen to fight the sale using OSI as a proxie.

    Open Source has absolutely no interest in fighting the patent wars. We only do so when necessary because we are attacked. We have no interest in who owns the Novell patents and it is insane for Open Source to start a software patent fight with Microsoft. I recommend that IBM stop using OSI or any other open source entity as a proxie in this fight.


    Steve Stites

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