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What Would You Like to Ask Open Invention Network CEO Jerry Rosenthal?
Monday, September 25 2006 @ 05:05 AM EDT

I know. Patents are boring. Or you have decided you are allergic to them. And you believe they are threatening the innovation that makes Linux and FOSS projects such a delight. I agree with you. But now what?

There they are, patents galore, and the USPTO keeps churning out more and more of them, and we keep trying to cope with the mess as the system seems to be speeding up and spitting out more and more stupid and dangerous patents, like the chocolate factory bonbons on the conveyor belt in that hilarious I Love Lucy episode, where Lucy and Ethel are frantically stuffing bonbons down their shirts and under their caps and into their mouths to try to keep up with the rapidly accelerating assembly line.

Some, like Richard Stallman believe the answer is to get the law changed so that software patents are no longer allowed. That is a fine plan, but how are you going to do it? And can you do it this month? This year? Ever? And what about the patents in the meantime coming at us one after the other? Do we just wait for the ultimate solution? Some may think that is in fact the best, to let the system topple over. Let it get so bad that everyone sees how dangerous software patents are. Let it all play out, and then they will repeal it if it gets bad enough. Since this seems to be my week to disagree with famous people, I'll say outright that I disagree with Richard on this point. I think short term strategies have value.

Here's my thinking. What about the victims of the patent system in the meantime? To me, it's like telling a wrongly condemned man on death row that you can't do anything to help him, because your goal is to overturn the death penalty, and in furtherance of that goal, innocent people getting put to death is helpful. I think he would hope you would rearrange your priorities, if not your ultimate goal, and find a way to do both.

A lot of legal brainpower has been going into trying to figure out solutions to the patent threat hanging in the air. We all assume that Microsoft will kill Linux if it can ever find a way, and heaven only knows Steve Ballmer has made veiled threats about using patents. Lawyers on the Linux side understand that language and some real creativity has gone into devising some ways to block, such as the OSDL's patent commons and FOSS search engine project to make it easier for the USPTO to find FOSS prior art and NYU's Open Source prior art project. I believe these are helpful projects. One of the most creative ideas, in my view, is the Open Invention Network, which launched in November of 2005. I know some of you have issues with any strategy that involves patents, so I asked OIN'S CEO Jerry Rosenthal if he would answer your questions, and he has agreed. It's an opportunity to get a firm grasp of what the strategy is, how it is working or not, and what the future might be.

Why do I say it's creative? Because it's an organic solution. It's like a martial arts move, where you use your opponents' strengths against him. The patent system is set up like a cold war. And all the big guns make peace pacts with the other big guns, and money flows back and forth as needed to keep the system rolling along. They do that kind of mutual cross-licensing because it is no longer possible to write any significant code without stepping on someone's patents somewhere. Rather than noticing that this is indicative of a fundamental problem with software patents, they cross license.

If the other side has no patents to use to cross license, they just sue. That is, stupidly enough, the way it works. And the problem is, Linux developers don't have any patents to cross license with in that crazy game. And even when they do, they have no money. Patent infringement lawsuits cost millions. Who has millions? Most FOSS developers don't work for big companies and don't have the kind of money you need to defend a patent infringement claim. Many are volunteers. So, how can they play this rich man's patent game? I remember in 2003 at a GPL seminar I attended, that was a question a lot of the lawyers were talking about, what if SCO had any patents? And what would Linux do if Microsoft attacked with patents, with nothing to use to negotiate with?

OIN decided to address that weakness and provide a safe zone for Linux innovation to flourish, despite the reality that there are those that would like to abort it. Or as they put it, "Open Invention Network is an intellectual property company that was formed to promote the Linux environment by using patents to create a collaborative ecosystem." This month, as you may have heard, NEC joined the Open Invention Network's founding members, IBM, Novell, Philips, Red Hat and Sony, signing on as both a licensee and investor. And in May OIN got some more patents to add to the arsenal. So the patent portfolio designed to protect innovation in Linux is growing.

When OIN was first announced, there was the usual naysaying from the usual suspects, but some saw the potential. I don't know why new ideas are so hard for people to accept, but it is so. Here is how OIN works: OIN's patents are available royalty-free to any company or individual that agrees not to assert its patents against Linux. The idea is to give business the confidence to invest in Linux.

It's almost a year later, and I'm sure you have some curiosity about what has happened so far. For one thing, there is a list now of covered applications, as Mark Webbink, General Counsel at Red Hat explains:

OIN was founded for two distinct purposes:
*To provide a network, or commons, around Linux and Linux-related applications; and

*To assure that the resulting large, patent-free “safe area” remains large, safe, and patent-free....

The OIN commons is created by having all participants in OIN, whether members or licensees, cross-license any owned patents that affect the Linux kernel, key components in any Linux distribution, and certain key Linux-related applications. The commons forms a large, safe area for development free of patent concerns.

The size of the safe area is critical to OIN’s future. If the commons is too narrow, it offers little protection. If it’s too broad, it makes it difficult for a company to join the commons for fear of undermining its proprietary technologies. OIN has tried to strike a balance between the two extremes by including applications the members believe to be valuable to the future of Linux and open source. The list of covered applications, which was scheduled to be published by OIN in February 2006, includes Apache, Eclipse, Evolution, Fedora Directory Server, Firefox, Gimp, GNOME, KDE, Mono, Mozilla, MySQL, Nautilus, OpenLDAP, Open Office, Perl, Postgresql, Python, Samba, SELinux, Sendmail, and Thunderbird, just to name a few. ...Any party willing to license its “Linux” patents to OIN and the other OIN licensees receives a royalty-free license to fully utilize all OIN-owned patents. The monetary cost to join OIN is zero."

You may also have some thoughts about the concept of OIN or questions about why this is a clever strategy. So ask away whatever you wish, and I'll collect the questions, the best of them, and send them to Jerry. Of course, he'll no doubt read some of them right here on Groklaw too. All I ask, as always, is that you be polite, no matter what your views on patents or patent strategies might be. And should you wish to sell or donate a patent, here's where you go.

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