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OSI Asks German FCO to Look Into the Proposed Patent Deal & You Can Too
Thursday, December 30 2010 @ 12:45 PM EST

OSI's board has asked the German Federal Cartel Office to look into this proposed patent deal. I'll bet you would like to write to them too. Well, polite factual communications from programmers in or with a bona fides interest in business in Germany could probably usefully write to poststelle at bundeskartellamt.bund.de -- but do it before 16:00 CET tomorrow.

Here's why OSI has expressed concerns to the German FCO, as explained by OSI's Michael Tiemann:
The fact that Microsoft was leading the takeover of Novell’s patents was itself alarming to the open source community, but when it was revealed that Microsoft had recruited Oracle, Apple, and EMC to be co-owners of the patents, the OSI Board felt compelled to request that competition authorities take a closer look at the proposed transaction. We found that the German Federal Cartel Office was open to receive comments from the public about this transaction during the month of December, and so we drafted and sent a letter (see attached), outlining our concerns and requesting that they investigate this transaction thoroughly. We have received an acknowledgement of receipt by the department in charge, and we stand ready to offer any additional assistance that may be required by investigators should they ask for such help.
From the letter [PDF] OSI sent:
3. The acquisition of the patents of a major Linux distributor has been shrouded in secrecy. Secrecy is customary in business transactions, but secrecy can also be used to hide nefarious intentions. Given the potential for collusion between these competitors to reduce competition amongst them and to harm competition that exists in the marketplace today, competition would be better served by the FCO thoroughly investigating the facts and evidence concerning this transaction, rather than giving them the benefit of the commercial doubt:
a. Will secrecy be used to spread more patent fear, uncertainty, and doubt (FUD)?

b. Will the CPTN principals decide strategically who will be offered which patents, thereby choosing amongst themselves who will be allowed to compete? And on what terms?

c. Will the patents be sold to non-practicing entities (NPEs) which can create havoc for open source software without risking the adverse reaction of the market if a practicing entity were to sue directly?

4. The creation of CPTN represents a MAJOR disruption to the competitive landscape. Whereas Novell was sincere in promoting and participating in open source software development and had an incentive to maintain their patent assets as a defensive portfolio, CPTN has all the motives and opportunity to do the opposite. That is, they have no incentive to support open source as a competitive alternative to proprietary software. CPTN creates a cover to launch patent attacks against open source while creating for each principal a measure of plausible deniability that the patent attack was not their idea. For all these reasons, we urge the FCO to investigate the CPTN transaction thoroughly and consider appropriate remedies to address the concerns raised above. The OSI would be happy to lend support or provide any additional information that may be requested.
If you were wondering why OSI filed in Germany, note that the merger requires that the FCO approve of the deal, among other conditions:
Conditions to the Closing of the Merger (page 85)

Each party’s obligation to consummate the merger is subject to the satisfaction or waiver of various conditions.

The obligations of Novell, Attachmate and Merger Sub to consummate the merger are subject to the satisfaction or waiver of each of the following conditions:

  • the adoption of the Merger Agreement by our stockholders;

  • the absence of any law or order or other action by a governmental entity of competent jurisdiction enjoining or otherwise prohibiting consummation of the merger; and

  • the expiration or termination of the waiting period (and any extensions) applicable to the merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and the receipt of all consents under other applicable antitrust laws, including the approval by the German antitrust authority, the Federal Cartel Office (“FCO”), under the German Act against Restraints of Competition in the version of 15 July 2005, as amended (the “ARC”).
So that's the explanation.

Remember when Novell won in SCO v. Novell before the jury in Utah in March of this year, and they put out the statement pledging their loyalty to Linux and how they would protect it?

Novell is very pleased with the jury’s decision confirming Novell’s ownership of the Unix copyrights, which SCO had asserted to own in its attack on Linux. Novell remains committed to promoting Linux, including by defending Linux on the intellectual property front.

This decision is good news for Novell, for Linux, and for the open source community.

Like a dope, I believed them. Maybe you did too. Maybe your business relied on that promise and decided to use Linux as a result. Now what? If you get sued for patent infringement over those 882 patents Novell wants to sell to the Microsoft consortium, would you have a cause of action against Novell as a result of what OSI calls a "major disruption to the competitive landscape." Ask your lawyer. But if the German FCO is saying it welcomes comments from the public, why not tell them about it, particularly if you have a business that could be directly affected by this proposed patent deal, if this is how you feel?

Novell has filed a revised proxy statement with the SEC, and the filing says that the FCO has already told Attachmate, on December 23rd, that it will not oppose the merger. But the 23rd is when OSI's letter was sent, so the door is open on the patent deal, at least, and the patent deal must close or the merger doesn't happen, as I read the filing.

The patent deal and the merger are intertwined in the sense that the merger doesn't go forward unless the patent deal happens, but the reverse isn't the case, as I'll show you in a minute.

Secrecy and mystery. For example, the patent sale is a contingent event that is required for the merger to happen, as the SEC filing explains:

Attachmate’s and Merger Sub’s obligations to consummate the merger are subject, among other things, to the prior closing of the transactions contemplated by the Patent Purchase Agreement, dated as of November 21, 2010, by and between CPTN Holdings LLC (“CPTN”) and us (the “Patent Purchase Agreement”). CPTN is a Delaware limited liability company and consortium of technology companies organized by Microsoft Corporation (“Microsoft”). Upon the terms and subject to the conditions of the Patent Purchase Agreement, we will sell all of our right, title and interest in 882 issued patents and patent applications to CPTN for $450 million in cash.
Maybe they will, and maybe they won't now. This is getting a little more interesting. But why are the two deals tied together? It makes me ask, is there any prior connection between Microsoft and Attachmate or its parent, Wizard Holding Corporation? Or Microsoft and Elliott Associates? Or Elliott Associates and Attachmate? Anyone know? Who *are* these people?

And the filing mentions a Company Disclosure Schedule a zillion times, which it says is where you can see a list of all the "intellectual property" Novell owns. But where is this Disclosure Schedule? It's defined like this:

“Company Disclosure Schedule” means the disclosure schedule, delivered by the Company to Parent immediately prior to the execution of this Agreement, with section numbers corresponding to the section numbers in this Agreement, provided that any information disclosed in the Company Disclosure Schedule with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to the extent it is reasonably apparent from the text of such disclosure that such disclosure applies to or qualifies such other representation or warranty; provided, however, that disclosure of any information or document in the Company Disclosure Schedule shall not be a statement or admission that it is material or required to be disclosed.
I know. That kind of language means the lawyers know, but you and I don't get to. They put the secret stuff in a separate document, and then just refer to it in the document the public sees. It's also where you find the bonuses that the executives will get if the deal goes through. Wouldn't we like to see that? It always amazes me how little people will accept to sell out.

Attached to the SEC filing is the Patent Purchase Agreement, dated as of November 21, 2010, by and between CPTN Holdings LLC and Novell, Inc. signed by Novell's CEO, Ronald W. Hovsepian, and Benjamin Orndorff for the Microsoft-organized consortium, CPTN. His title is Managing Director at Microsoft, according to Jigsaw. Also attached is the merger agreement between Novell and Attachmate.

Here are the financial animals involved in making the Attachmate deal happen:

Equity Financing. Attachmate has entered into equity commitment letters with Elliott Associates, L.P. and Elliott International, L.P. (together, the “Elliott Parties”), Francisco Partners and Francisco Partners Fund A, L.P., Golden Gate Capital Opportunity Fund, L.P. and Golden Gate Capital Opportunity Fund-A, L.P., and Thoma Bravo Fund IX, L.P., dated November 21, 2010, pursuant to which they have severally and not jointly committed to provide equity financing up to a specified dollar amount (in the case of the Elliott Parties, a specified dollar amount to be satisfied by shares of our common stock). The Elliott Parties will satisfy their equity commitment by contributing Novell common stock to Wizard Parent, the ultimate parent company of Attachmate, in exchange for equity securities of Wizard Parent, as provided for by the Investment Agreement described in and attached as an exhibit to the Schedule 13D/A filed on November 26, 2010 with the SEC by the Elliott 13D Filers. In total, the equity commitments are for an aggregate amount up to $425 million. The funding of the financing contemplated by the equity commitment letters is subject to several conditions, including the prior fulfillment of the conditions precedent to Attachmate’s and Merger Sub’s obligations to consummate the merger under the Merger Agreement and the contemporaneous closing of the merger. The obligation of the equity investors to fund their respective equity commitments will expire upon certain events, including the termination of the Merger Agreement in accordance with its terms and the consummation of the merger after giving effect to the equity contributions.

Debt Financing. In connection with Attachmate’s entry into the Merger Agreement, Attachmate, NetIQ and Merger Sub received a debt commitment letter, dated November 21, 2010, from Credit Suisse AG, Credit Suisse Securities (USA) LLC, Royal Bank of Canada, RBC Capital Markets, Goldman Sachs Bank USA, Citadel Securities Trading LLC and Citadel Securities LLC (collectively, the “Commitment Parties”). The debt commitment letter provides in the aggregate up to $1.09 billion in debt financing to Attachmate, NetIQ and Merger Sub. The facilities contemplated by the debt financing are subject to certain closing conditions, including without limitation, that, since July 31, 2010, there has not occurred any “Company Material Adverse Effect” (as defined in the Merger Agreement) and the negotiation, execution and delivery of definitive debt agreements. The debt commitment terminates automatically if the initial funding of the facilities does not occur on or before 5:00 p.m., New York City time, on April 20, 2011 (or such earlier date on which the Merger Agreement is terminated).

Attachmate has agreed to use its reasonable best efforts to arrange and obtain financing, consisting of equity and debt financing, on the terms and conditions set forth in the equity and debt commitment letters described above and described more fully elsewhere in this proxy statement. Attachmate has further agreed to use its reasonable best efforts to maintain in effect such commitment letters and any related definitive agreements, timely satisfy all conditions in the financing agreements applicable to it and Merger Sub in order to obtain the financing, consummate the equity financing at or prior to the closing of the merger, negotiate and enter into definitive agreements with respect to the debt financing and provide copies of such agreements to us, consummate the debt financing at or prior to the closing of the merger and fully enforce any counterparties’ obligations and its own rights under any financing agreements. If any portion of the debt financing becomes unavailable on the terms and conditions contemplated by the applicable financing agreements, Attachmate will promptly notify us and will use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the merger with terms and conditions not materially less favorable, taken as a whole, to Attachmate, Merger Sub and us than the terms and conditions in the applicable existing debt financing agreements.

If the closing of the merger does not occur on or prior to March 31, 2011, Attachmate is required to use its reasonable best efforts to extend the term of the debt commitment letter upon terms and conditions substantially similar to those currently reflected in the debt commitment letter to a date that is not less than 30 days and not more than 60 days after April 20, 2011, which is the date on which either party may terminate the Merger Agreement if the merger has not been consummated, provided certain conditions are met. In the event that Attachmate successfully extends the term of the debt commitment letter and certain conditions have been met prior to April 20, 2011, the date on which either party may terminate the Merger Agreement will be automatically extended until the expiration of the extension; provided that Attachmate and its affiliates, including the equity investors under the equity commitment letters, will not be required to pay any out-of-pocket fees or expenses to or on behalf of such lenders or to contribute additional equity with respect to the merger.

Bloomberg read the SEC filing too, and it explains the money part of the deal.

There are conditions to the patent deal going through also:

Our and CPTN’s obligations to consummate the patent sale, in turn, are subject to the satisfaction or waiver of various conditions, including, without limitation: (i) the absence of any law, order or other action enjoining or otherwise prohibiting consummation of the patent sale; (ii) the absence of any threatened or pending action by any governmental entity challenging or seeking to prevent, alter or materially delay the patent sale, or seeking to restrain the operation of CPTN or to require CPTN or any of its members or affiliates to divest any assets or businesses or to agree to restrictions on its assets or businesses; (iii) with respect to CPTN’s obligations only, the absence of certain threatened or pending actions by third parties seeking to prevent or delay the closing of the patent sale beyond a reasonable period of time and that, if successful, would reasonably be expected to adversely affect the benefits of the patent sale to CPTN in any material respect; (iv) our and CPTN’s respective performance or compliance in all material respects with all agreements or covenants required to be performed by each of us at or prior to the closing of the patent sale; (v) the satisfaction or waiver of each of the conditions to the consummation of the merger (other than the closing of the patent sale), and the parties to the Merger Agreement shall be ready, willing and able to consummate the Merger immediately after the closing of the patent sale; (vi) the expiration or termination of the waiting period applicable to the consummation of the patent sale under the HSR Act and the receipt of all consents under other applicable antitrust laws, including the approval by the FCO under the ARC; (vii) the obtaining of all required approvals of any government entity; and (viii) our and CPTN’s respective representations and warranties being true and correct. For additional information regarding the patent sale, see “The Merger – The Patent Sale” beginning on page 59.
I think you can see in that list that the deal depends on OSI not being successful with Germany's FCO. In turn, if the merger fails to happen, here are the possible outcomes to the patent deal, which Andy Updegrove earlier ably explained also, but here's the wording first from the SEC filing:
If the Merger Agreement is terminated, the Patent Purchase Agreement will, by its terms, automatically terminate, except that:

  • if the Merger Agreement is terminated because we receive an “acquisition proposal” that contemplates an acquisition of us (other than an acquisition proposal that contemplates we will retain all of the 882 issued patents and patent applications) and we deem such a proposal to be a “superior proposal,” CPTN may elect to continue the Patent Purchase Agreement in which case the Patent Purchase Agreement will remain in full force and effect, except that references to the Merger Agreement will automatically be deemed to be to the acquisition agreement between us and the party from which we accepted the “superior proposal;” and

  • if the Merger Agreement is terminated for any reason (other than our receipt of an “acquisition proposal” for our entire company that we deem to be a “superior proposal”), CPTN may elect to continue the Patent Purchase Agreement in which case the Patent Purchase Agreement will remain in full force and effect, except that references to the Merger Agreement will have no effect.

In the event that CPTN has elected to continue the Patent Purchase Agreement following a termination of the Merger Agreement as described above, we and CPTN will enter into a royalty-free, fully paid-up patent cross license for no additional consideration, effective as of the closing of the patent sale, with respect to all patents and patent applications owned or controlled by us and CPTN on mutually acceptable terms that are no less favorable in the aggregate to either party than the terms of any other patent cross license offered by CPTN to any other person (other than any member of CPTN or an affiliate of any such member). For additional information regarding the patent sale, see “The Merger – The Patent Sale” beginning on page 59.

So, from CPTN's perspective, they either buy the patents or they get to enter into a royalty-free, fully paid up license to all Novell patents, not just the 882, without having to pay any more than they would to buy the 882. They call it a cross license, and Updegrove offered some analysis:
Here is where the Novell Board did not fare so well. What this means is that if neither Attachmate nor a higher bidder steps in, CPTN has the right to cherry pick the Novell patent portfolio. Of course, Novell will also have $450 million in cash, so assuming that this is fair value, the Novell stockholders should be happy.

Or maybe not. Presumably the Attachmate deal includes the right of Attachmate to license the right to use whatever patents CPTN is buying for the purpose of continuing Novell’s historical businesses. But according to the language above, all references to the Merger Agreement (and therefore, presumably, to any such license rights) would disappear. Would this leave Novell dramatically less valuable?

The answer is yes and no. After describing various unilateral termination rights, the 8-K addresses this issue as follows:

In the event that CPTN has elected to continue the Patent Purchase Agreement following a termination of the Merger Agreement as described above, Novell and CPTN will enter into a royalty-free, fully paid-up patent cross license for no additional consideration, effective as of the closing, with respect to all patents and patent applications owned or controlled by them on mutually acceptable terms that are no less favorable in the aggregate to either party than the terms of any other patent cross license offered by CPTN to any other person (other than any member of CPTN or an affiliate of any such member).
These few sentences offer a comparative gold mine. First, note that not only the 882 patents covered by the patent sale are covered. Instead, the parties will negotiate a cross-license to all of the patents, and patent applications, owned by each party. Next, note that if the Attachmate deal dies and the CPTN deal goes through, then the price Novell will have to pay to continue to conduct its patent-based business will be to license all of its patents to CPTN – for no additional compensation.

The second interesting word is “cross license,” suggesting that perhaps CPTN will be holding patents in addition to those it purchases from Novell. If so, then Novell will in fact get something back in exchange for free access to the rest of its patents.

This may also indicate that Microsoft has formed CPTN not to split the cost of the acquisition (unlikely in any event, given its enormous cash reserves), but instead to create a larger pool of patents, or cross license rights, among itself and its unnamed partners (the question, of course, is what patents, and for what purpose?)

The final term of note is that while Novell would get “most favored nation” terms with other licensees of CPTN, it would not necessarily get terms as favorable as the CPTN members.

Well, there's probably nothing we can do about that. If Novell was foolish, and we don't know enough to know if they were, it's their problem. But having a license to use the patents isn't as awful as if Microsoft owns them.

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