The Novell Deal

The web has been aflutter with the news that Novell – owners of the SUSE Linux distribution – have been sold to Attachmate, and that futhermore a bundle of 882 patents belonging to Novell have been sold to CPTN Holding, a somewhat mysterious proxy for a group of tech companies organised by Microsoft. Whenever the words Microsoft and Linux get mentioned together there is extensive internet drama. In this case the concerns raised were chiefly

  1. that Microsoft might somehow use the 882 patents to destroy Linux
  2. that Attachmate might kill the openSUSE project

Point 2 was answered quickly by a statement from Atachmate shortly after the deal was announced:

“The openSUSE project is an important part of the SUSE business… As noted in the agreement announced today, Attachmate plans to operate SUSE as a stand-alone business unit after the transaction closes. If this transaction closes, then after closing, Attachmate Corporation anticipates no change to the relationship between the SUSE business and the openSUSE project as a result of this transaction.”

That leaves the suspicion that CPTN Holding might be a lynching posse for Linux. An interesting post on the FOSSPatents blog argues convincingly against panic on this score, but I think there are also other reasons for delaying any effigy burning or widespread acts of civil disobedience.  Novell was a member of the Open Invention Network, an organisation that holds a group of patents and licences these to tech companies on condition that they commit not to use their own patents against Linux. The OIN is criticised on occasion for seeming to be inert (in fact the blog post I linked above does just that) but it’s quite possible to argue that for a body like the OIN success looks an awful lot like inertia. After all, if it were constantly having to ride to the rescue of Linux, it would be failing in at least its intended deterrent effect.

In any case, OIN is kind enough to publish the standard agreement that tech companies sign up to when joining.  This agreement covers what happens when a signatory wants to sell (assign) the patents that they have agreed not to use against Linux:

5.1 No patents subject to this Agreement shall be assigned or any rights granted hereunder unless such assignment or grant is made subject to the terms of this Agreement. Neither OIN nor You shall assign this Agreement, assign any of its rights under this Agreement, or delegate any of its obligations hereunder, unless otherwise agreed in writing by the other party. Any attempt to do any of the foregoing shall be void.

I am not a lawyer, but my reading of this clause is that – assuming this agreement was in force between them – Novell needed OIN’s agreement to sell their patents and the patents themselves remain subject to the agreement at their new home. If this is the case, it seems extremely unlikely that they can be used against Linux.