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To read comments to this article, go here
Nokia Offers Patents to Linux Kernel
Friday, May 27 2005 @ 04:34 PM EDT

Well, knock me over with a feather. Nokia has made a patent pledge, to allow "all its patents", as it puts it in the press release, to be used in the further development of the Linux kernel, in order to give it certainty. Nokia has been pushing very hard for software patents in Europe, so this took me by surprise. Here is how they put it:

Nokia believes that the investment made by so many individuals and companies in creating and developing the Linux Kernel and other open source software deserve a framework of certainty.

  While Nokia welcomes the recent announcements in the industry where companies have stated express non-assertions with regard to some of their patents, it also believes that the situation would substantially improve, if more supporters of the Linux Kernel and other open source software would take a clear public position on this issue.

So far, their statement is with regard to the kernel only, but they will "review whether similar statements can be made with respect to other open source projects in which Nokia is participating."

Matt Whipp at PCPro adds this extremely important detail:

In order to establish that commitment it is promising not to assert patents against the Linux kernel and additionally to not grant patent licences to companies asserting patent claims against the Linux kernel.

I waited a day to report this, because I wanted to pick a patent attorney's brain first. I saw some negative reactions from others, and my first reaction was a bit cynical as well -- thinking maybe they were doing this to make it seem like software patents in the EU are not a threat to FOSS. I worried about the fine print, and I wanted to be sure I understood it. My attorney friend says that in his opinion this is a fine and meaningful statement from Nokia. Motives -- well, time will tell. So I applaud Nokia and thank them very much.

I would encourage them -- and everyone -- to think about the need for innovation in FOSS, which depends on a healthy ecosystem, and not just offer protection on patents that benefit one company's projects, but rather the freedom to develop in whatever ways creative programmers can invent. For that, we need a bigger solution.

The proprietary mindset thinks in terms of what is best for the company, while throwing tacks in the road of competitors. This seriously hinders progress. FOSS encourages competition, because the common pot is enhanced by knowledge from everyone, and that, of course, is what made Linux develop so well, so fast. It's science, and scientists share what they know, so as to encourage progress. It works.

Here's the fine print:

Nokia hereby commits not to assert any of its Patents (as defined herein below) against any Linux Kernel (as defined herein below) existing as of 25 May 2005. The aforesaid non-assertion shall extend to any future Linux Kernel to the extent that Nokia does not declare any new functionality embodied in such Linux Kernel to be outside the scope of this Patent Statement. Nokia shall issue such declaration through its website no later than one hundred and twenty (120) days after the official release of such Linux Kernel.

Both of the aforesaid non-assertion commitments are subject to the condition that the party relying on any such commitment and its Affiliates do not assert any of their patents, or patents they control or have a third party assert any patent, against any Linux Kernel.. . .

"Linux Kernel" means any version of the Linux kernel which (i) is released as "stable version", (ii) is licensed under the "GNU GENERAL PUBLIC LICENSE Version 2, June 1991 for the Linux operating system" and (iii) has been published by the Kernel.org Organization, Inc on its Linux Kernel Archive website at www.kernel.org.

So, it's legally binding, and it covers the kernel as of today, stable releases. The future, though, appears a bit less clear. But remember, legalese is what it is. With patents, this is about as good as it gets. (That's why patents and software need to get a divorce, but that's another topic.)

I'm glad that the patent safety zone just got a bit bigger for Linux, and I hope Nokia extends their statement to cover the rest of the FOSS world. The safety zone needs to become a lot bigger if software patents are allowed, unless the world desires to kill off FOSS and the billions that come with it. I trust Nokia, which supports software patents in Europe, will continue to think deep thoughts about what is needed to keep FOSS alive, now that they have released a Linux device. Clearly, their statement is an acknowledgment that FOSS is directly imperiled by software patents. They are right. It is.

You might enjoy to read an IBM paper on the change in thinking that an individual or company must make to understand and then gain the benefits of Open Source, "Opening minds: Cultural change with the introduction of open-source collaboration methods " [PDF], by A. Neus and P. Scherf. It's a cultural shift, and we see it happening in real time at Nokia.

By the way, some have expressed concern that Nokia's statement somehow violates the GPL. My patent pal says no. There's no requirement in the GPL that Nokia license its patents. So long as no court has issued an injunction barring making or using of the Linux kernel, or no party has agreed to a patent license barring the distribution of the Linux kernel in compliance with the GPL, Section 7 doesn't apply. So you worriers can relax on that score.

Here is the Nokia press release, followed by the statement:

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

Nokia announces patent support to the Linux Kernel
May 25, 2005

Espoo, Finland - Nokia Corporation announced today that it allows all its patents to be used in the further development of the Linux Kernel. Nokia believes that open source software communities, like open standards, foster innovation and make an important contribution to the creation and rapid adaptation of technologies.

  Unlike other open standards, however, many open source software projects rely only on copyright licenses that often do not clarify patent issues. Nokia believes that the investment made by so many individuals and companies in creating and developing the Linux Kernel and other open source software deserve a framework of certainty.

  While Nokia welcomes the recent announcements in the industry where companies have stated express non-assertions with regard to some of their patents, it also believes that the situation would substantially improve, if more supporters of the Linux Kernel and other open source software would take a clear public position on this issue.

  Nokia, therefore, issues the legally binding Patent Statement, which has been posted on its website at www.nokia.com/iprstatements. The Patent Statement applies to Nokia's patents infringed by current official releases of the Linux Kernel and all future official releases of the Linux Kernel to the extent that Nokia has not declared new functionality embodied in such releases to be outside the scope of the Patent Statement. With respect to new functionality introduced into future Linux Kernel releases, Nokia reserves the right to declare that the Patent Statement shall not apply.

  Nokia intends to work with the open source community in identifying in advance those functionalities that Nokia would declare to be outside the Patent Statement. Nokia invites each patent holder to make similar statements with regard to the open source software projects it wants to support. While Nokia's Patent Statement is limited to official releases of the Linux Kernel only, Nokia intends to review whether similar statements can be made with respect to other open source projects in which Nokia is participating.

  Nokia also believes that a party should not enjoy use of Nokia's patents and at the same time threaten the development of the Linux Kernel by assertion of its own patents. Therefore, Nokia's commitment shall not apply with regard to any party asserting its patents against any Linux Kernel.

  By issuing the Patent Statement, Nokia wishes to encourage others to follow in order to foster the open development model and innovation for the benefit of developers and users alike. 

    About Nokia

Nokia is a world leader in mobile communications, driving the growth and sustainability of the broader mobility industry. Nokia connects people to each other and the information that matters to them with easy-to-use and innovative products like mobile phones, devices and solutions for imaging, games, media and businesses. Nokia provides equipment, solutions and services for network operators and corporations. www.nokia.com

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

Legally Binding Commitment Not to Assert Nokia Patents against the Linux Kernel

Patent Statement

Nokia hereby commits not to assert any of its Patents (as defined herein below) against any Linux Kernel (as defined herein below) existing as of 25 May 2005. The aforesaid non-assertion shall extend to any future Linux Kernel to the extent that Nokia does not declare any new functionality embodied in such Linux Kernel to be outside the scope of this Patent Statement. Nokia shall issue such declaration through its website no later than one hundred and twenty (120) days after the official release of such Linux Kernel.

Both of the aforesaid non-assertion commitments are subject to the condition that the party relying on any such commitment and its Affiliates do not assert any of their patents, or patents they control or have a third party assert any patent, against any Linux Kernel.

Nokia's Patent Statement is not an assurance that any of its Patents validly covers the Linux Kernel, is enforceable, or that the Linux Kernel does not infringe patents or other intellectual property rights of any third party.

No other rights except those expressly stated in this Patent Statement shall be deemed granted or received by implication, or estoppel, or otherwise.

Definitions:

"Affiliate"
of a party means any legal entity greater than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, or greater than fifty percent (50%) of whose equity interest is, now or hereafter, owned or controlled, directly or indirectly by that party, but only as long as such ownership or control exists.

"Nokia"
means Nokia Corporation and its Affiliates.

"Linux Kernel"
means any version of the Linux kernel which (i) is released as "stable version", (ii) is licensed under the "GNU GENERAL PUBLIC LICENSE Version 2, June 1991 for the Linux operating system" and (iii) has been published by the Kernel.org Organization, Inc on its Linux Kernel Archive website at www.kernel.org.

"Patent"
means any such claims, including without limitation, method and product claims, of any and all patents and patent applications with a priority date of 31 December 2005 or earlier, now owned or hereafter acquired by Nokia, which are infringed by any Linux Kernel that exists as of 25 May 2005 or by any functionality embodied in any future Linux Kernel to the extent that Nokia has not declared as described hereinabove such functionality to be outside the scope of this Patent Statement. For the avoidance of doubt, Patent shall not include any claims for enabling technologies that are not themselves embodied in the Linux Kernel (e.g., without limitation, hardware or semiconductor manufacturing technology as such).


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