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Dealing With Patent Threats: Patent Commons Project & OIN
Sunday, December 18 2005 @ 07:42 PM EST

This article, or more accurately a version of it, originally appeared on LWN, as "A look at the Patent Commons Project and OIN" in the December 7, 2005 edition. I wanted to add it to our permanent collection here in Groklaw too, with its original title, because it's very much part of the living history that we've been watching unfold before our eyes, and because I've noticed that some really don't understand how patent pools work or why this is an idea that can be useful, legally, or even why we need such strategies. So when LWN asked me to write the article, I was glad to try to explain what I see. I hope you enjoy it.


Dealing With Patent Threats: The Patent Commons Project and the Open Invention Network

Now that we have both OSDL's Patent Commons Project and the Open Invention Network off and running, the questions that come to mind are: what is the difference, if any, between them, and are either of them -- or both of them together -- enough to protect Linux and FOSS development from a US patent system that appears to have gone bonkers? More specifically, can they protect Linux from Microsoft, or SCO-like surrogate trolls, should it decide to press forward in implementing its many hints of bringing patent infringement claims against Linux?

What Is the Difference Between Them?

While they are both designed for protection against patent infringement litigation, there are differences in approach. A patent commons provides both a safety zone and a way to barter. Corporations cross-license their patents all the time. GNU/Linux developers were shut out of that club, but with some patents and patent pledges in a patent commons, they would have something to barter with. Consequently, OSDL encourages individuals, companies, Open Source projects, and universities to obtain patents and then contribute them to the commons:

The Project also provides a meaningful way for those who oppose software patents to use the current patent system for the benefit of the open source community and industry. Patenting ideas reduces the likelihood that detractors of open source software and open standards will obtain a patent on that same invention and use it against the community and industry, or extract royalties for its use. More importantly, patenting ideas and then pledging the patents in support of The Commons expands and reinforces the protective environment of The Commons.

OSDL's project is also designed to help developers keep track of all the patents and the patent pledges, and it is focused on all of Open Source:

Today's software patent environment is growing increasingly complex for developers and users of both proprietary and open source software. This is an intricate problem with many facets, and most everyone understands the need for a comprehensive, long-term solution.

It has as a goal to simplify the administrative process of licensing patents, so the industry finds it easy and pleasant to work with Open Source and can make their patents available without a lot of rigamarole. From the Patent Commons website:

With increasing frequency, institutions, companies, and inventors wish to signal formally to open source developers, distributors, sellers and users that software patents they hold are not a threat or inhibitor to the development, distribution or use of open source software and open standards. The traditional means of giving permission to use patented inventions (such as licenses) can be expensive, time consuming, and logistically difficult to provide. Commitments simplify the process by which access to patented inventions can be granted.

The Patent Commons is set up to facilitate that process. The idea is to provide developers with a safer haven, and clarity from understanding which patents will not be used against them. Also, enforcing the patents in the commons is administered by OSDL, which is an important benefit for patent donors.

"Over the last 12 months, OSDL has been happy to see companies signal to the community their promises not to enforce patents against open source developers. We have wanted to ensure these pledges would be accessible to those who they are intended to support. The OSDL Project and website does just that," said Diane Peters, general counsel, OSDL. "For the first time, the pledges are being compiled and then cataloged in a neutral location where developers can view and analyze each pledge. So, regardless of where one stands on the value of one patent pledge over another, developers and IT managers can review the merits of each pledge and determine for themselves the value they can provide for them or their peers."

As Eben Moglen stated, there is strength in numbers, and so even though he opposes patents, he encourages developers to contribute to the project. As Linus put it, it's "one way to try to help developers deal with the threat" of patent litigation. It's not the complete solution, of course, because the patent system is dysfunctional in the US. Peters: "We do realize that the Patent Commons Project and website is one step of many that will need to take place to address the flawed patent system and we applaud other efforts that are taking place and encourage further discussion and actions to chip away at the current system."

The Open Invention Network approaches the same threat, but in a different way. First, it's a company that has a patent portfolio, but it isn't using its patents for profit generation; instead it plans to use them to create a healthy environment for Linux to develop in safely, to promote safe innovation and drive advancement of applications for, and components of, Linux. It's primarily designed to protect Linux but it covers also other Open Source software.

OIN has the 39 web services patents that Novell, through a subsidiary, just bought from bankrupt CommerceOne for $15.5 million, and it will seek to acquire more patents, and then offer them royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications. IBM, Novell, Philips, Red Hat, and Sony currently fund OIN. OIN isn't just about collecting patents and offering them to others on mutually pleasant terms. A Red Hat SEC filing adds this:

The LLC may also take appropriate, good faith counter-measures within the scope of its mandate, such as declaratory judgment actions, reexamination actions, interferences or similar legal or administrative actions initiated anywhere in the world.

In short, they are "armed and dangerous". I'm kidding, but only a little. These are some of the largest tech vendors in the world drawing a line in the sand and saying, if you cross this line and attack Linux, we will respond, and we have something to respond with effectively. One savvy editor, Richard Hoffman of Network Computing put it like this:

This is the first systematic attempt by a group of large vendors to ensure that Linux and its users are protected from the threat of legal action. OIN can't hope to acquire even a small fraction of all applicable patents, but that's not how patent battles work. All OIN must do is maintain an adequate stable of "defensive" patents, which can be offered under a cross-licensing arrangement any time Microsoft or others threaten legal action. In other words: You don't sue us, we won't sue you.

Can OIN succeed? Yes, if it can build a sufficient war chest of patents. But OIN's mere existence is clear proof that the high-tech industry is committed to keeping Linux open and available

Do They Provide Meaningful Protection?

When you consider that Eben Moglen, OSDL, Linus Torvalds, Richard Stallman, IBM, Novell, Red Hat, Sony, and Philips all think so, a better question would be, why do you doubt it? As you may have observed in the current Blackberry patent anguish, or the Microsoft-Eolas battle, even one patent can be dangerous, so having hundreds in your arsenal is bound to make any aggressor stop and think twice before taking you on. I personally believe, from listening to the jungle drums, that Microsoft might have attacked already, were it not for these new and very creative strategies. Bullies prefer to attack the weak, do they not?

But are the patents any good, some may ask? Do you remember, before the auction of the CommerceOne patents, how anxious everyone was feeling, particularly Google, Oracle and Sun Microsystems? What if the patents fell into the wrong hands? Efforts to pool resources were reported in the press, including by a nonprofit group, the CommerceNet Consortiium. Here is how the patents were described by CommerceNet:

CommerceNet asserted that the patents "cover basic technology for facilitating network transactions by identifying a transaction in terms of input and output documents. If obtained by an intellectual property licensing organization, it is expected that the patents would likely be broadly asserted against companies completing transactions using web service interface descriptions (WSDL), service registries (UDDI), and documents composed from XML building blocks."

Obviously, at the time everyone thought the patents were valuable and dangerous and notice who is impacted by the patents:

The patents cover technical protocols that underlie popular methods for exchanging business documents over the Internet.

The protocols, also known as Web services, are in wide use today. Microsoft, IBM and, presumably, the companies at this week's meeting have incorporated them into their software products and their own business systems, Smith said. Although it may turn out that the patents are too broad to enforce or may be otherwise invalidated if challenged, people are nervous.

"There's a concern that these patents could be used aggressively by a buyer to shake down the whole Web services industry," said Jason Schultz, an attorney at technology activist organization the Electronic Frontier Foundation.

Thanks to Novell, those patents are now available to the community, having been donated to OIN, and not only do they not endanger Linux, they protect it. They have the same power today that they had then. Even Microsoft is impacted by the patents, which is exactly what you want, if you wish to hold them back from attack, is it not? If OIN had nothing but these patents, it would have something useful in defending Linux. Here's what Gartner said about the value of OIN:

Software patents pose the single largest threat to the open-source software model. Though they protect their owners' IP, they can also create legal barriers to many open-source efforts. For example, as Linux and Windows edge onto one anotherís turf, the Linux community will have few defenses against the power of Microsoft, if the software giant should seek to claim royalties from the use of allegedly misappropriated IP.

A company like OIN that can uphold a strong patent portfolio will create a counter-offensive against potential patent infringement claims. OIN expects to accumulate patents by purchase, auction or donation. It will contractually offer royalty-free usage of its patents to technology suppliers for use in their own products (as long as the patent user makes no future patent infringement claim against Linux and associated software). We believe this collaborative environment is likely to free up the flow of technology somewhat, by reducing fears of lawsuits from patent claims.

It frees up the flow by holding evildoers at bay, pure and simple. Is it the complete solution? No. As far as I'm concerned, software and patents need to get a divorce on the grounds of incompatibility. Some feel that is the only goal worth striving for. But can you do it by next week? If you can, please do and we won't need either the OSDL Patent Commons Project or OIN. But if you can't, what do you suggest we do to hold Microsoft at bay? SCO didn't have any patents. Imagine if they did. How do you plan to protect GNU/Linux from such a patent infringement claim? If you don't have a plan, then are you thinking deeply enough?

By forming a company that can act (where individual companies might be held back by prior cross-licensing arrangements), something new, innovative, and powerful is now standing guard over Linux. The lawyers have been busy and very creative. and yes, it's real. It has deterrent value in the legal context. And if litigation comes along anyway, it has both defensive and offensive potential. A year ago, Linux had nothing but threats hanging over its head, theats of patent litigation heading its way. Now, there is some protection against that threat, protection which will continue to be strengthened, I'm sure. No matter what your position on software patents, how can that be anything but good?

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