Home -> Law Blog Directory -> Intellectual Property Law Blogs -> Groklaw

Intellectual Property Law

: Groklaw

DOJ Asks Novell *and Microsoft* for More Information Regarding the Patent Sale

By Pamela Jones et al.

Novell reveals in an SEC filing today supplementing its proxy statement that the US Department of Justice has sent it and Microsoft a "second request" for more information regarding the proposed sale of patents to the Microsoft-organized consortium CPTN:

Also on February 2, 2011, each of CPTN and Novell received a Second Request from the DOJ regarding the sale of certain identified patents and patent applications to CPTN contemplated by the Patent Purchase Agreement. The Second Requests have the effect of extending the waiting period under the HSR Act until 30 days after both parties have substantially complied with the Second Requests, unless the waiting period is earlier terminated. Novell is in the process of gathering information to respond to this Second Request and is continuing to cooperate fully with the DOJ in connection with its review.

As you know, OSI and FSF filed a request with the DOJ, asking them to look into the proposed deal. And the 14A filing reveals that there are others raising issues, the shareholders who filed suit against Novell in Delaware. They sent Novell a letter too, and they'd specifically like to know if there is some kind of back-room deal between Elliott Associates and Attachmate.

In a teleconference on January 19th with the judge handling that class action litigation, the shareholders said they wouldn't try to block the merger, but on the 24th, they sent a letter to Novell claiming there is information that is either "omitted from" the proxy statement or is included but is "misleading" . The SEC filing responds to the concerns.

What are they? One is, what would Novell's value be if the merger doesn't happen but the patent deal does? The shareholders claim that a Jesse Cohn of Elliott "was in contact with the sponsors of Attachmate about a Novell deal as early as January 2010, and that his communications with Attachmate continued throughout the sales process Novell's board of directors initiated soon after Elliott's March 2010 offer." Was he promised that Attachmate would give the Elliott folks a seat on the board or some "other arrangement that would give Elliott a greater role than just minority shareholder of Attachmate"? The shareholders also allege "that Elliott and Attachmate expect to receive significant synergies in the near term." I'd certainly like to know what they know that we don't.

Full post as published by Groklaw on February 03, 2011 (boomark / email).