decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Canonical, OIN's 1st Associate Member, Commits to Freedom of Action in Open Source
Tuesday, June 22 2010 @ 09:42 PM EDT

OIN has just announced a new associate membership program, and Canonical is the first associate member:
OIN Associate Members, such as Canonical, demonstrate support and commitment to limiting the effects of patent disputes in Linux. Canonical's activities and those of all companies seeking to adopt and use Linux will be facilitated as OIN works closely with Canonical and other companies that are supporting Linux's growth and expansion. Through the support of its founding members including IBM, NEC, Novell, Philips, Red Hat and Sony, OIN has amassed a broad portfolio of patents, including patents held by nominees on its behalf....

"We view Open Invention Network as one of the key methods through which open source leaders and innovators can deter patent aggression," said Jane Silber, CEO of Canonical. "We are committed to freedom of action in open source, and have noted OIN's efforts to actively defend and enable the Linux ecosystem. By becoming an OIN Associate Member, we are supporting the broad OIN mission and its commitment to enable and protect Linux's advancement."

One thing for sure I know about Mark Shuttleworth. He's brave. Microsoft doesn't cause him to cower in fear. And I'll tell you what I know about OIN. They know how to fight to win.

I thought you'd like to see the description of OIN's CEO Keith Bergelt posted on the SE LinuxFest speakers' schedule for the recent conference, where maddog hall, Red Hat's Max Spevack, Debian Gnu/Linux hacker Bryan Smith, Steven Dake, who was involved in the creation of the industry first Carrier Grade Linux software solution at MontaVista Software, and Joshua Drake, President of United States PostgreSQL, and a Director for SPI, the non-profit behind Debian, OpenOffice and PostgreSQL.Org -- with many others -- also spoke:
Keith Bergelt is the chief executive officer of Open Invention Network (OIN), the collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux. In this capacity, he is directly responsible for enabling, influencing and defending the integrity of the Linux ecosystem. Central to the achievement of his goals is the acquisition and transfer of patent rights designed to permit members of the Linux ecosystem to operate free of the threat of assertion and litigation from those whose business models are antithetical to innovation and global economic growth in information technology and computing.
Bergelt is highly respected in the FOSS community, as is OIN, as you can verify by looking at the lists of those signed on as licensees. I see Florian Mueller immediately attacked OIN. Yes, again. He's wrong again, of course, and all I ever see from him is attacks on those working hard to protect FOSS from the patent threat. His complaint this time is that OIN isn't transparent enough.

You know who I think would *really* love OIN to be transparent? Microsoft. Then it could avoid getting checkmated by OIN next time. Remember, it was OIN who blocked Microsoft's attempted sale of antiLinux patents to patent trolls last year. Florian didn't do that. I didn't do it. You didn't do it. OIN did it. And he thereby protected Linux from an evil machination designed to tie Linux to the railroad tracks, as I wrote at the time. For this one act alone, the community owes OIN our thanks to time indefinite. Yes. Really. I'm guessing that is why OIN is now a target for FUD attacks.

Software Freedom Law Center has a primer that touches on why patents are not usually associated with transparency. In fact, when we all worked on the new draft that became GPLv3, the patent lawyers were reluctant to participate unless they were promised confidentiality. Mueller of course is not a lawyer or trained in the field, so he probably doesn't realize his latest rant makes no legal sense. But I wanted you to know. If I knew every bit of the planned strategy, I'd never tell. Seriously. Well, later I would, after it worked.

And I have a question. Who in the FOSS community *doesn't* Florian attack? Are patent threats coming from OIN? What is his problem? Why doesn't he focus on where the threats really come from? Think about it.

Here is the meat of the OIN press release:

****************************

Open Invention Network Announces Associate Member Program and Recruits Canonical As Its First Associate Member

New Associate Member Program Strengthens Linux Community and Deepens OIN Impact in Support of Linux's Growth and Migration into Key Emerging Markets

Durham, NC (June 22, 2010) - Open Invention Network (OIN) today announced that Canonical, the company behind Ubuntu, has become its first Associate Member. Open Invention Network developed the Associate Member program to further strengthen the Linux community and empower open source leaders to ensure ongoing freedom of action for Linux as it relates to intellectual property (IP) rights.

OIN Associate Members, such as Canonical, demonstrate support and commitment to limiting the effects of patent disputes in Linux. Canonical's activities and those of all companies seeking to adopt and use Linux will be facilitated as OIN works closely with Canonical and other companies that are supporting Linux's growth and expansion. Through the support of its founding members including IBM, NEC, Novell, Philips, Red Hat and Sony, OIN has amassed a broad portfolio of patents, including patents held by nominees on its behalf.

"Canonical has shown great leadership with Ubuntu and it is an important participant in the overall open source and Linux ecosystem. By transitioning its relationship with OIN from Licensee and becoming OIN's first Associate Member, Canonical is once again demonstrating its leadership and commitment to Linux," said Keith Bergelt, CEO of Open Invention Network. "We are extremely pleased to launch our Associate Member program and have Canonical join as our first member."

"We view Open Invention Network as one of the key methods through which open source leaders and innovators can deter patent aggression," said Jane Silber, CEO of Canonical. "We are committed to freedom of action in open source, and have noted OIN's efforts to actively defend and enable the Linux ecosystem. By becoming an OIN Associate Member, we are supporting the broad OIN mission and its commitment to enable and protect Linux's advancement."

About OIN Membership & Licensee Opportunities Open Invention Network has three levels of participation, each of which helps to promote open source as a modality for invention and ensure ongoing freedom of action for Linux community members:

• Founding Members - Open Invention Network comprises six forward-looking organizations that originally created OIN with a mission of enabling and protecting Linux as it relates to IP rights. OIN's Founding Members include IBM, NEC, Novell, Philips, Red Hat and Sony.

• Associate Members - Associate Members are recruited from Linux-related companies, including those that are leaders in advancing Linux's migration into emerging growth markets. Associate Members make a commitment to the Linux Community by virtue of their commitments to and membership in OIN and help to ensure that patent issues do not impair Linux's growth.

• Licensees - Any company or organization that agrees to refrain from using its intellectual property against the Linux System may become an OIN licensee. Licensees benefit from royalty-free access to a valuable and growing portfolio of strategic patents, as well as from ongoing communication with OIN concerning Linux-related patent issues. In so doing, licensees facilitate their access to OIN resources such as Linux Defenders, which is designed to address patent issues with the potential to impact Linux. OIN licensees, be they founding members, associate members or licensees, contribute to an ever expanding community of companies that share a common goal of ensuring freedom of action in and across the Linux ecosystem. Through their unified commitment to Linux, they limit the negative effect of patent-based challenges mounted by companies antagonistic to Linux and open source innovation.

###

About Canonical

Canonical provides engineering, online and professional services to Ubuntu partners and customers worldwide. As the company behind the Ubuntu project, Canonical is committed to the production and support of Ubuntu - an ever-popular and fast-growing open-source operating system. It aims to ensure that Ubuntu is available to every organisation and individual on servers, desktops, laptops and netbooks.

Canonical partners with computer hardware manufacturers to certify Ubuntu, provides migration, deployment, support and training services to businesses, and offers online services direct to end users. Canonical also builds and maintains collaborative, open-source development tools to ensure that organisations and individuals can participate fully in innovations within the open-source community. For more information, visit www.canonical.com.

About Open Invention Network®

Open Invention Network is a collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux. It does this by acquiring and licensing patents, influencing behaviors and policy and protecting the integrity of the ecosystem through strategic programs such as Linux Defenders. OIN enables the growth and continuation of open source software by fostering a healthy Linux ecosystem of investors, vendors, developers and users.

Open Invention Network has considerable industry backing. It was launched in 2005 by IBM, NEC, Novell, Philips, Red Hat and Sony. OIN has received supplemental financial support from Canonical. For more information, visit www.openinventionnetwork.com.

###

Open Invention Network, the Open Invention Network logo, Linux Defenders, Linux Defenders 911 and the Linux Defenders 911 logo are registered trademarks or the property of Open Invention Network, LLC. All other names and brand marks are the property of their respective holders.


  


Canonical, OIN's 1st Associate Member, Commits to Freedom of Action in Open Source | 237 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: bsm2003 on Tuesday, June 22 2010 @ 09:46 PM EDT
You know the Drill.

[ Reply to This | # ]

News Pics Here
Authored by: bsm2003 on Tuesday, June 22 2010 @ 09:47 PM EDT
You know the drill.

[ Reply to This | # ]

Off topic Here
Authored by: bsm2003 on Tuesday, June 22 2010 @ 09:48 PM EDT
Trifecta Again.

[ Reply to This | # ]

why Mark Shuttleworth doesn't cower before Microsoft
Authored by: Anonymous on Tuesday, June 22 2010 @ 10:36 PM EDT
He's South African, not US-ian, and his corporation, Canonical Ltd., is
registered in the Isle of Man, so he has no patriotic duty to support a
USA-based hegemon.

[ Reply to This | # ]

Florian's criticism of intransparency
Authored by: Anonymous on Wednesday, June 23 2010 @ 01:07 AM EDT

Florian' s criticism of what he calls "intransparent" doesn't seem to be about the patents at all.

Quote from an earlier posting on his blog: Unfortunately, the OIN's six owners decide in a completely intransparent process what is and what isn't part of that "Linux System" (...) This combination of intransparency and arbitrariness puts licensees into a weak take-it-or-leave-it position. If the OIN changes the list based on the strategic goals of its six owners, all others can stay or leave but they have no basis on which to require the OIN to include certain components in that list or to exclude some from it.

The "Linux System" is what the whole OIN license agreement relates to. Anything that's not part of it can be Linux-based or open source and wouldn't be covered.

[ Reply to This | # ]

Defensive Patent License
Authored by: Anonymous on Wednesday, June 23 2010 @ 01:15 AM EDT
PJ, you say Florian should deal with where the threat is coming from but he talks about patent defense all the time. See this posting on the Defensive Patent License. What do you think of the DPL and the idea to create open source-friendly trolls?

[ Reply to This | # ]

Florian attacks open and closed source companies
Authored by: Anonymous on Wednesday, June 23 2010 @ 01:45 AM EDT
In alphabetical order the ones he's criticized or mentioned in
a negative context: Apple, Google, IBM,
Microsoft, NEC, Novell, Philips, Red Hat, Sony. And Oracle
(Sun deal) but couldn't find anything bad about them on that
fosspatents blog.

[ Reply to This | # ]

Canonical, OIN's 1st Associate Member, Commits to Freedom of Action in Open Source
Authored by: Anonymous on Wednesday, June 23 2010 @ 03:58 AM EDT
Remember, it was OIN who blocked Microsoft's attempted sale of antiLinux patents to patent trolls last year

I don't see how they blocked it. The patents were sold to a group that buys patents, gives its members a license, then resells the patents. A member of that group is an OIN member, so its not unexpected that the group would consider OIN when reselling the patents.

Their membership in OIN was not secret, so when Microsoft sold the patents to them, it surely knew that it was possible, or even likely, that the patents would end up at OIN.

Microsoft sold the patents at a private auction, open only to invited bidders. If Microsoft wanted the patents to end up at a troll, they would have only invited trolls. They would not have invited a group that they knew would resell, and that included an OIN member.

At best, you can say that Microsoft was indifferent as to where the patents would end up. It's not accurate to say they attempted to sell to trolls.

[ Reply to This | # ]

I've had a thunk.
Authored by: Ian Al on Wednesday, June 23 2010 @ 05:18 AM EDT
OIN have some patents that might cover something in Linux, including some
Microsoft cast-off patents. That means that Microsoft are forever barred from
those bits of technology for their own OS if they want to litigate against
Linux. I wonder if they are being cut-off from all the things necessary to
change their own OS into a secure, robust and efficient OS like... well...
Linux.

Of course, they could just go with Linux and add their own window (or, do I mean
Windows) manager. Oh, I forgot the GPL. Mind you, even BSD insists that the
binaries carry the copyright notices so that would be almost as embarrassing to
Microsoft. Still, lovely new OS or seven strikes and you're out? I know what I
would choose. Well, I already did!

---
Regards
Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

[ Reply to This | # ]

Is Canonical seeking protection for it's inclusion of mono?
Authored by: Anonymous on Wednesday, June 23 2010 @ 06:49 AM EDT
Canonical has been getting a lot of grief from the open source community of late
because of their decision to include the (potentially) patent encumbered mono as
part of the standard installation in their recent releases of Ubuntu. Do they
realize that they may be one of the first targets of MS, should they ever decide
to sue over their Silverlight patent's? Is this move to become an associate
member of OIN their way of hiring a bodyguard against the schoolyard bully?

[ Reply to This | # ]

Florian isn't about FOSS, but patents.
Authored by: Anonymous on Wednesday, June 23 2010 @ 06:51 AM EDT
There's no point in berating Florian: he cares about the issue of software
patents. Not about FOSS vs closed-source.

For a while FOSS and anti-software patent camps were very well aligned, and they
are still, in the larger scheme of things - at a strategic level. But since the
inception of OIN, there have been tactical differences. FOSS companies have to
operate in the existing patent landscape, so OIN makes tactical sense as a
protection, but participating in the patent system lends it some credence, and
Florian is no doubt annoyed by that.

Richard Stallman has a singleminded focus as the Free Sofware founder. Sometimes
his philosophy clashes with real-world tactics of people and companies who are
GPL advocates. Florian is no less singleminded about software patents. Sometimes
his anti software patent philosophy clashes with the real-world tactics of
others who are anti.

This doesn't mean he is an enemy of FOSS.

[ Reply to This | # ]

Another bill from Blank Rome
Authored by: Baud on Wednesday, June 23 2010 @ 06:53 AM EDT
This one is for January and February 2010: $244,836.50 (fees) plus $3,783.55
(expenses).

Of note, Blank Rome billed 158.5 hours for the sale of mobility business to
Darl. That amounts to $72,029.50. But OPA already got $60.000 out of $100.000
for this super whooper initiative.

So, the net benefit is already negative: $-32,029.50.

And counting...

[ Reply to This | # ]

Canonical has a good reason
Authored by: Anonymous on Wednesday, June 23 2010 @ 10:45 AM EDT
Ubuntu distributes lots of software that is patent encumbered. During the
installation process you are informed that certain software may not be legal in
your area but there is nothing to stop you from installing it anyway. Tell me
honestly, how many US Ubuntu users have mp3 player software installed? How many
have DVD player software installed?

[ Reply to This | # ]

Transparency and patents are incompatible....
Authored by: gettys on Wednesday, June 23 2010 @ 03:49 PM EDT
Having recent encounters with our patent and litigation system it is clear that an organization such as OIN or the SFLC cannot be completely transparent (independent of whatever motives one might construe on their management or their sponsors).

Remember, we are talking about:

  • Defending on-going litigation.
  • Preparing for possible/probable future litigation.
  • Enabling the use of technologies that we've successfully engineered around, but for which we need to have concrete defense prepared before moving forward, if only to prevent future litigation.

In the preparation of such defenses, you are examining particular claims on a patent. Patents are much less clear than code, and claims and terminology are subject to many interpretations (for better or usually for worse). As you put together the case for why you do not infringe, or why the claim on the patent is invalid, you do not at first necessarily "get it right". So there is a conversation that takes place between the counsel working on the case, and the technical people involved in the case.

It is easy therefore to make mistakes, or to not know of other information and therefore to make off-hand comments of the like "this claim looks hard to defeat", which, when you've done a more careful analysis and understand the patent better you would regret, and certainly do not want the opposing counsel to call you to the stand and be able to interrogate you as to why you initially thought that was an issue; this would inject fog into the case being presented to a jury, if the case gets so far. I certainly have been through this process, where I first thought a claim was going to be difficult, and then, when I understood the context better, was absolutely certain of the prior art involved in invalidating the claims, and would have been happy to testify in court to that if that had been necessary. Thankfully, I was able to avoid the trip to east Texas; the RH/Novell case was better demonstrated to the jury by smaller portable existence proofs than trying to set up a VAX11/750's hooked up to VS100's, where X was first developed, along with others fine testimony. X was but one of several good samples of prior art.

But the inevitable initial level of (mis)understanding as you first read a patent means that lots gets said in passing that opposing counsel might be able to twist against you. It is also why lawyers like the telephone so much: no transcripts that could be subpoenaed, and why when making initial contact about some issue, you really may need to be careful about what you put in writing.

Ideally you solve the issue long before it goes to trial (which is hideously expensive). And discovery in a trial means that lots of what gets written may come to light. You certainly also don't want to suggest other possible lines of attack to adversaries, but in defense you explore how you might be attacked in detail. You probably know more than the opposition, and you don't want to "give away" any advantage the defense may have. Remember, patents provide the "first mover" advantage to the patent owner; the presumption is that patent is valid, and you have to prove otherwise.

Such open conversations should therefore be always under attorney/client privilege. So by the very nature of the litigation system of the patent system, any organization that wished to defend itself (or others) against attack cannot be fully "transparent". And ensuring you are under such privilege when having discussions is quite vital.

Speculating about whether we violate this or that patent in public can only bite us.

We actually face a dilemma as a community: given that transparency is not fully possible given our adversarial litigation system, yet ingrained in our very culture, how can we trust such organizations such as OIN and SFLC? Where do we draw the lines of transparency? Where do we descend into secrecy?

I guarantee you both organizations worry very much about this problem and how to balance the competing interests of secrecy and transparency: I've heard it out of the mouths of both Eben Moglen and Keith Bergelt.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )