Today, it was announced that the CPTN alliance had heavily modified its deal in order for their purchase of several hundred Novell patents to go through.
These modifications included a buy-and-handover of some patents from Microsoft, the non-purchase of virtualization patents by EMC, and most annoyingly, the gifting of the use of these patents gratis to the usual crew of Linux freeloaders.
Not shocking, since I thought the entire thing was fraught with issues from the onset. I believe Microsoft should have gone this purchase alone.
Could this have been done another way, you know a way whereby use of the patents with the payment some onerous tribute would have been required by Linux?
Of course.
The first error, IMO, is that a consortium was formed. By their very nature, coalitions like these draw scrutiny from antitrust authorities.
A détente agreement was already in force. That should have been expanded to include all assets of the company.
Secondly, Microsoft should have worked out a packaged bankruptcy arrangement with Novell that would have it pick up the company from reorg, owning the patents outright.
At that point in time, it would be okay, I assume, to do a cross-licensing deal with the other alliance members.
While such moves might be distasteful, they certainly wouldn’t be unlawful.
Other views
UPDATE: I have been informed that whatever the agreement may be, when in bankruptcy court, anyone could bid and snatch Novell from Microsoft.
I stand corrected on that, but my point is wouldn’t the paid-for patent licenses still stand, and wouldn’t that make sure that the ‘assets’ don’t fall freely to open source types? Then again, maybe that wasn’t Microsoft’s objective; said objective being not to be sued.
