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Regulators Protect Open Source as Novell Patent Sale Goes Through

Novell has completed a final deal, selling the company, including its SUSE Linux business, to Attachmate for $2.2bn. US Jobs Axed as SUSE Linux Moved Back to German HQ...

The deal also included the sale of 849 former Novell patents to CPTN, a Microsoft led consortium, which also included Oracle, Apple and EMC. However, this second part of the deal has been placed under heavy restrictions by the US and European regulators in order to safeguard the open source world against future patent attacks.

From the outset, Novel had made clear that the proposed patent transfer did not include those directly relating to Linux, Unix and its long-running court battle with SCO. Despite this, fear had been growing that the CPTN consortium members could use the patents to restrict open source innovations in mobile applications, middleware and virtualisation.

“The OSI is specifically concerned that Oracle may use the patents it selects to disrupt competitors – including open source competitors – in operating systems, middleware, virtualization, and mobile applications and platforms,” commented the organisation’s president Michael Tiemann. “Without further investigation or limitations to their behaviour, it would be difficult if not impossible to repair the damage to the Linux ecosystem if Oracle took once-friendly patents and turned them against the Linux community.”

This time, the regulators in the US and Europe heeded the warnings of the OSI and others. Working together to investigate the proposed patent transfer, the US Department of Justice (DoJ) and Germany’s Federal Cartel Office (FCO) moved to impose heavy restrictions on the deal before it was allowed through.

Under the new terms eventually brokered between CPTN and the regulation authorities, members of the consortium are able to protect themselves against the patents they acquire, but cannot use them aggressively against open source competition. Microsoft has been forced to sell the patents it acquired back to Attachmate but will receive a license to use any of the patents acquired by the group.

EMC, the owners of VMware have not been allowed to acquire 33 patents relating to virtualisation. Meanwhile, all of the Novell patents are subject to the GNU General Public License, Version 2 and the Open Invention Network (OIN) License.

Attachmate, meanwhile, is restructuring the remaining Novell business into two distinct areas. The company’s traditional systems management and security business will now operate as ‘Novell’, with headquarters in Provo, Utah. SUSE will drop the ‘Novell’ moniker and will be returning to its roots in Germany.

As part of the restructuring, Novell has laid-off an as yet undisclosed number of SUSE developers in the US. This move has led to speculation about the future of the Mono project, the controversial cross-platform implementation of Microsoft’s .NET development framework, which runs on Linux and other non-Microsoft platforms.

“We have re-established Nuremburg as the headquarters of our SUSE business unit, and the prioritisation and resourcing of certain development efforts – including Mono – will now be determined by the business unit leaders there,” said Jeff Hawn, Chairman and CEO of The Attachmate Group, in a statement sent to “This change led to the release of some US based employees today. As previously stated, all technology roadmaps remain intact with resources being added to those in a manner commensurate with customer demand.”

Commenting on the Mono for Android mailing list, Miguel de Icaza, the Mono Project’s founder and (currently) a Novell VP, dismissed exact figures on the US lay-offs as baseless. De Icaza simply confirmed his inability to comment on the exact future of the project, writing:

“The CEO of Attachmate has said that roadmaps will continue, I think that is all I can say for now.”

It seems unlikely that the independent SUSE business unit will choose to drop its sponsorship of the Mono project entirely, and perfectly feasible, according to what has been said, that the company could set up its own US office to re-hire the Mono team. Nonetheless, online speculation is rife with Microsoft, Canonical, IBM and the Outercurve Foundation (formerly the CodePlex Foundation), all being touted as potential new homes for the project.

Yet, the clear message to come out of the final Attachmate deal is that competition regulators on both sides of the Atlantic are clearly becoming more concerned about the potential effects of takeovers and patent deals on open source software.