Microsoft led-consortium filing is ‘political’: expert

A Microsoft Corp.-led consortium’s decision to withdraw a filing in Germany to buy 882 Novell Inc. patents likely has more to do with potential antitrust issues than it does with recent outcries from the open source community, said one Canadian copyright expert.

“I think the opposition they are most worried about is EU antitrust,” said Russell McOrmond, policy coordinator with CLUE Canada, an Ottawa-based association promoting open standards. “There is always someone in the community that’s worried,” he added, referring to opposition from open source advocates.


The consortium, which also includes Apple Inc., Oracle Corp. and EMC Corp., had previously told the regulator that it would form CPTN Holdings in order to acquire the Novell patents. Concerns were voiced by the Open Source Initiative (OSI) and the Free Software Foundation Europe (FSFE). On Dec. 30, it withdrew its filing.

But McOrmond points out that the patents in question, which the consortium has yet to even list, may turn out to be largely irrelevant to the open source market. “For all we know, there are some patents that apply to Word Processing because Novell owned Word Perfect before Corel did. So there’s all that history,” said McOrmond.

Given the consortium has not listed the desired patents leads McOrmond to believe the filing is more political and marketing-inclined than it is legal.

“You don’t have a copyright or patent case until the specific copyrighting content or patent number is disclosed,” said McOrmond. “Since there’s no list of patent numbers in question, then there’s really nothing under patent law that can be discussed.”

McOrmond said the filing by the consortium is not motivated by the member companies’ desire to have a patent pool so nobody can sue each other. Rather, he thinks it’s about the consortium having the ability to stamp out non-consortium members by waving around patents. 

Microsoft said the decision to withdraw is for nothing more than to re-examine the filing. “This is a purely procedural step necessary to provide time to allow for review of the proposed transaction,” wrote a Microsoft spokesperson in an e-mailed statement.

Jay Lyman, senior analyst for enterprise software with the 451 Group Inc., said the withdrawal may be a case of “procedural pause” after which the consortium will proceed with the transaction.
But should the patents have relevance to the open source market, then outcries from the open source community are indeed founded, said Lyman. “I believe the alarm from free and open source software advocates regarding these patents and who possesses them represent legitimate concerns, particularly in the context of the larger software patent issues, challenges and lawsuits,” said Lyman.

Follow Kathleen Lau on Twitter: @KathleenLau

–with files from Jennifer Baker and Chris Kanaracus

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