Novell in a filing with the SEC it calls its Definitive Proxy Statement reveals that this month, on January 11, someone contacted Novell wishing to discuss buying the notorious 882 patents and maybe more:
On January 11, 2011, representatives of Party E contacted one of our executive officers who reported that such representatives had been following recent media reports of our pending transactions and were prepared to discuss “reasonable, competitive terms” of a transaction with us. On January 13, 2011, a representative of Party E clarified that their interest is in a transaction related to an acquisition of the patents and patent applications being sold pursuant to the Patent Purchase Agreement, “and maybe more.” This filing was on January 14, so stay tuned.
The 882 patents turn out not to be 882 after all. There are only 861, and the Microsoft consortium would like some of Attachmate's to make up for the few they've discovered don't exist... Wait. What? Attachmate was to get only patents and copyrights associated with Novell's UNIX and Linux businesses, right? Microsoft wants some of those? Like, um... some UNIX copyrights perchance?
Novell says Attachmate won't "currently" consent.
What about later? Is this some kind of hustle?
Here's that section from the proxy statement:
In the course of preparing our patent files for transfer to CPTN in connection with the closing of the patent sale, we determined that 19
of the patents to be sold to CPTN pursuant to the Patent Purchase Agreement are lapsed Australian, German or Austrian patent applications rather than issued Australian, German or Austrian patents. We also determined that one issued patent was
referenced twice. As a result, if the patent sale occurs,
CPTN would purchase 861 issued patents and pending patent applications and 20 lapsed patent applications. While Novell does not believe that the foregoing should have any effect on the
parties’ respective rights and obligations under the Patent Purchase Agreement, CPTN has proposed to Attachmate and us that Novell provide it with additional issued patents and pending patent applications currently held in Novell’s
intellectual property portfolio. The stated rationale behind CPTN’s proposal is to address a terminal disclaimer issue known to CPTN, Attachmate and us at the signing of the Patent Purchase Agreement, to address certain potential future
terminal disclaimer issues, to unite certain patent families, and to compensate CPTN for the reduction in issued patents which would be acquired by CPTN. Attachmate has informed us that they currently do not intend to consent to our changing the
list of assigned patents under the Patent Purchase Agreement. And if the merger doesn't happen and CPTN decides to choose the cross license option, here's more on how that would work:
The issued patents and patent applications to be sold
to CPTN pursuant to the Patent Purchase Agreement relate primarily to enterprise-level computer systems management software, enterprise-level file management and collaboration software in addition to patents relevant to our identity and security
management business, although it is possible that certain of such issued patents and patent applications read on a range of different software products. Approximately 43% of these are US issued patents; approximately 30% are US patent applications;
approximately 22% are foreign issued patents, and approximately 5% are foreign patent applications.
Historically, the issued
patents and patent applications included in the patent sale have been used to facilitate and protect our current and planned business activities, and to reduce the risk of potential infringement claims against us. We do not currently license any of
these issued patents and patent applications on a royalty-bearing basis, but the patents are subject to specific non-royalty bearing licenses granted by Novell during the period of its ownership of the patents.
We and Microsoft are parties to a Business Collaboration Agreement, a Technical Collaboration Agreement and a Patent Cooperation
Agreement that collectively were designed to build, market and support a series of new solutions to enhance the interoperability of Novell’s products with Microsoft’s products.
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, 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). We believe that
obtaining such cross license under these circumstances would permit us to conduct our businesses in substantially the same manner following a closing of the patent sale as we currently conduct such businesses.