Novell told the SEC Tuesday that it's still waiting for regulatory clearance of the sale of 882 patents to a consortium composed of Microsoft, Oracle, Apple and EMC and that the Justice Department's deadline to object had passed on April 12 (the date of the filing) but that it was still waiting to be waved through by Germany's Federal Cartel Office (FCO), which has until Tuesday April 26 to object.

Novell can't get bought by Attachmate without the $450 million the Fab Four are putting up for the patents so Novell shareholders can clear $6.10 a share on the acquisition. Attachmate will be using Novell's money to pay for Novell.

Novell didn't mention in the filing that FOSS organizations like the Open Software Initiative (OSI) have been trying to gut the deal by complaining to the regulators that the companies buying the patents are anti-open source or that the patent deal, as originally contemplated, had changed apparently because of those complaints.

OSI said last Friday that German regulators at the FCO had slipped it a "non-expert summary" that said that:

• Microsoft, Oracle, Apple and EMC, which bandied together as the CPTN consortium for purposes of the transaction, will only hang together long enough to split the patents four ways, a process that should take no longer than three months. OSI said this means they "will not form a new long-term patent troll," its abiding fear.
• Each of the four gets a perpetual license to the whole stash.
• Microsoft will sell its 25% share of the patents to Attachmate, keeping only a defensive license (presumably, from what already known, for ~$112 million of Novell's own money less a contribution to whatever Microsoft's paying from Elliott Associates in return for a bigger piece of Attachmate).
• None of the 31 patents that relate to virtualization will go to EMC, which owns the lion's share of virtualization maven VMware.
• Any sub-licenses and covenants not to sue will remain in place.

OSI's blog (http://opensource.org/node/562), detailing its continuing objections to the deal, runs on but as patent watcher Florian Mueller says OSI doesn't appear to have a legal leg to stand on.

"It seems to me," he says, "that the regulatory agencies have obtained very significant concessions from Microsoft and EMC, and I can't see what else the antitrust authorities could realistically do to address concerns by competitors and open source organizations. OSI still declares itself unhappy, but I believe they must realize that competition law has its limits. I doubt that the regulators could have imposed the changes that apparently occurred to the transaction if they had ever had to defend those in court. To me this looks like a deal that the companies agreed upon in order to avoid further delays, not because of a firm legal obligation."

So Mueller figures the deal, as encapsulated by OSI, is probably going to go through.

The stock market seems relatively sure of the same outcome because it's bid Novell's stock up to $6.03, which is close to the $6.10 takeout price.

Mueller suspects that the Fab Four are immune to any patent claims arising from any Novell patent, not just the 882 they're buying.