DOJ closes investigation of Apple acquisition of Nortel and Novell patents on FRAND commitments

In a statement from the United States Department of Justice clearing Google’s acquisition of Motorola, the DOJ also closed its investigations into Apple’s acquisition of certain Novell patents, and the Apple, Microsoft, and RIM acquisition of Nortel patents.  The statement claimed concerns of unfair use of the patents were curbed with Apple and Microsoft making strong commitments to the DOJ regarding fair, reasonable and non-discriminatory use of standard essential patents and not to “seek injunctions in disputes.” However, Google apparently didn’t provide the same level of commitment:

“During the course of the division’s investigation, several of the principal competitors, including Google, Apple and Microsoft, made commitments concerning their SEP licensing policies.  The division’s concerns about the potential anticompetitive use of SEPs was lessened by the clear commitments by Apple and Microsoft to license SEPs on fair, reasonable and non-discriminatory terms, as well as their commitments not to seek injunctions in disputes involving SEPs.  Google’s commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies.” 

The DOJ continued that Apple’s plan to pick up Novell patents from CPTN Holdings LLC, who acquired them on behalf of Apple in April,  is “unlikely to harm competition”. The DOJ claimed Apple’s acquisition of the patents wouldn’t allow the company to stop offering royalty-free licenses for use in Linux, and Apple has even committed to honoring the terms of the Novell’s licensing agreements:

While the patents Apple would acquire are important to the open source community and to Linux-based software in particular, the OIN, to which Novell belonged, requires its participating patent holders to offer a perpetual, royalty-free license for use in the “Linux-system.”  The division investigated whether the change in ownership would permit Apple to avoid OIN commitments and seek royalties from Linux users.  The division concluded it would not, a conclusion made easier by Apple’s commitment to honor Novell’s OIN licensing commitments.