DOJ Modifies Novell/Attachmate/CTPS Deal

The DOJ issued a press release about the modification of the Novell sale, previously reported in this blog.  The sale had theatened to divorce ownership of Novell’s patent portfolio from the company that succeeded to its Linux business.  The DOJ required Microsoft to “sell back to Attachmate all of the Novell patents that Microsoft would have otherwise acquired,” leaving Microsoft only with a license, and unwound the sale to EMC of 33 patents and patent applications related to virtualization.  The DOJ’s press release said, “All of the Novell patents will be acquired subject to the GNU General Public License, Version 2…and the Open Invention Network (OIN) License.”  It is unclear exactly what the release meant by the GPL reference, given GPLv2 has no express patent grant (perhaps referring to an implied license, perhaps merely a misstatement?) but the statement clarifies that the  patents will remain subject to OIN license terms.  (This seemed likely in any case, as previously reported in this blog.)  The DOJ also said, “CPTN does not have the right to limit which of the patents, if any, are available under the OIN license,” suggesting that the limiting elections possible under the OIN license Cannot be made in the short term by CPTN.  The full documents do not appear yet to be public, but should be available when the settlement is filed with the Court as a part of the the Tunney Act approval process.  The Tunney Act is a US antitrust law that, among other things, requires that the government and an antitrust defendant disclose  communications related to the settlement process.