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Open Invention Network's Jerry Rosenthal Answers Your Questions
Wednesday, December 13 2006 @ 05:31 AM EST

Here are Open Invention Network CEO Jerry Rosenthal's answers to Groklaw's collection of questions about OIN and how it operates. OIN describes itself as "an intellectual property company formed to further the Linux environment by acquiring patents and ensuring their availability". Here are some of those patents.

I'd like to say thank you to Mr. Rosenthal for taking the time from his very busy schedule to answer our questions. As you will see, he appreciated them, and one of you made a suggestion that OIN will be following up on. But here's my favorite answer:

There are a number of organizations that collect IP portfolios in order to make them available to be shared by all. We are also here to take the actions that might be required, against businesses or organizations that look to use IP to harm the Linux environment.

Unlike operating systems owned by individual companies like Sun, Microsoft or Apple – there is no one company that owns the majority of the IP related to Linux. This, to a certain extent, made companies that leveraged Linux vulnerable to a business or organization with a willingness to sue, based on perceived or potential patent infringements. In addition to a number of other initiatives taken on by leading Linux vendors, we were created to deflect opportunistic or even malicious attacks on Linux.

As we can see from recent events, someone was smart enough to see that there would be a need for strategies to deal with "opportunistic or even malicious attacks on Linux".

It's a crying shame that it's necessary, but there you are. It is what it is.

I hope Mr. Rosenthal's answers to your questions will enhance your comprehension of how very creative an idea this was, given the sad state of affairs the US patent system presents.

Personally, I'm now convinced by recent events that the community needs to continue to think through how best to respond to those realities going forward. When I started Groklaw, and then began to write about SCO, my thought was that there was a good chance of being victorious, because while there might be a lot of money and power on the other side, there was a lot of brain power on the FOSS side. In the first interview I ever did, I said this in answer to a question from Linux Online:

I believe Microsoft when they say Linux will have IP headaches in the future, and I believe they will be bringing on the headaches, directly or indirectly, because they said that, unless the backlash from this SCO fight is so massive that they decide it isn't going to work. Free and open source are willing to play nicely with others, but we see now that the proprietary side has issues. Some personality flaws too, don't you think? : ) So, what do you do about a bully? If he's bigger than you are, you certainly try to outsmart him. There's no lack of brains on our side, happily.

That is still true. And we certainly do need to figure out how to outsmart a bully, more than ever. I was counting on the corporate members of the community to figure out patent strategies, and what they came up with made sense to me, from a legal point of view. After the Novell-Microsoft patent agreement, I've decided it's best to do our own thinking though, in addition to theirs. We haven't yet found the complete answer, and I don't think they can be relied upon to supply one without a helping hand from the community.

Corporate entities are unlikely to comprehend the importance of the GPL to FOSS development. The Novell deal illustrates that lack of comprehension, at best. Without the GPL, Linux would never have been the success it has turned out to be. There are important reasons why the community overwhelmingly chooses the GPL and not the BSD license.

Microsoft seems to be the one corporate player that absolutely gets the importance of the GPL, and it fights against it without letup. But on the other side, I don't yet see an equivalent and opposing resolve. They want to benefit from the GPL'd code; but they also want to keep their software patents. It's all very 1990s. The only way that can happen is if the GPL is neutered, and I believe some of them are willing to do exactly that, even with the best of intentions, because they just don't get it. The community therefore has to preserve its own development environment, because that is what makes the FOSS magic happen; it's what makes volunteers show up willing to code. Who will volunteer, if their work is ripped off or abused?

Business folks talk about innovation, but in reality their decisions are usually based on what they call pragmatic realities. They want the benefits of that pool of code; but they haven't fully understood what created the pool and what sustains it, so they may choose their patents over the GPL and their business strategies over community ethics. Reality is just another word for status quo. But they don't even fully see what reality is, because they don't value the GPL or understand the role it plays in fostering innovation. So, the community needs to put its own brain power to work. Because there is a bully in the playground.

With that introduction, here are Jerry Rosenthal's answers to the questions you posed, and they may prompt some creative ideas.

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

Groklaw: How does OIN fit in with other patent projects, including PubPat, Peer-to-Patent, Open Source as Prior Art, patent-reform legislation, and F/OSS advocacy? Which applies most directly to which threats and/or situations?

We believe that organizations and projects like those you just mentioned have a real value in ensuring that intellectual property is legitimate, shared, made available or kept open. However, we are different than these organizations and projects in several ways.

First, we are focused on Linux. While it is a subset of open source, we are chartered to protect the Linux environment. Certainly, businesses that develop non-Linux open source code will benefit greatly by becoming an OIN licensee. But first and foremost, we were created to protect Linux.

Second, we go about our business by acquiring intellectual property through purchases of patents, and receiving their donations. To be clear, we make all of our patents available royalty-free to our licensees, but we do acquire IP that we believe to be strategic. Not every organization you mentioned is designed to purchase IP.

Third, we are designed to defend Linux. There are a number of organizations that collect IP portfolios in order to make them available to be shared by all. We are also here to take the actions that might be required, against businesses or organizations that look to use IP to harm the Linux environment.

Unlike operating systems owned by individual companies like Sun, Microsoft or Apple – there is no one company that owns the majority of the IP related to Linux. This, to a certain extent, made companies that leveraged Linux vulnerable to a business or organization with a willingness to sue, based on perceived or potential patent infringements. In addition to a number of other initiatives taken on by leading Linux vendors, we were created to deflect opportunistic or even malicious attacks on Linux.

What would an OIN defense look like? Typically, our first action would be to contact the organization that is claiming patent infringement. Our goal would be to have a conversation where we allow them to license our IP in return for a license to their patents. If necessary, we might demonstrate how their products might infringe on our patents. Legal proceedings for patent infringement would be our last resort. While we can adequately handle the latter, our goal is to build the Linux ecosystem with the former.

Groklaw: Most of the patent prior art strategies and OIN are directed at protecting what already exists or establishing a workable prior art database. OIN however looks to the future, to the need for a space to innovate. I wonder about the lack of funds in the FOSS community. How are individual programmers supposed to function in a patent system that requires so much money? And since the answer is that they can't, is it possible that OIN will at some point be the place for such developers to donate their ideas or projects so OIN can apply for patents?

This is an excellent question. Many people ask us what types of patents we look to acquire. We do build our portfolio by looking to the future of computing. It does us little good to try and build a protected, Linux ecosystem if you only address IP that is valuable today. Areas we look at every day include Web / Internet, e-commerce, mobile and communications. Additionally, while many people assume that we only find value in software IP, the fact is, hardware IP is valuable too in many of the Linux-based solutions. We speak with enterprise companies, venture capitalists, entrepreneurs and services companies regarding their areas of development, helping us keep track of important trends.

The bigger issue that you raise is with regard to our corporate model. When we began putting the operations model together for OIN, we examined your suggestion of also being an IP “idea” donation destination. That would require OIN to review many IP “ideas,” file for patents and then manage the application process. The problem with OIN taking on that particular set of activities is that we would lose our focus. We are very busy examining and acquiring current patents and patent applications. We do take donations of valuable patents and purchase patent portfolios with some ongoing applications. We also consider taking donations of patents that owners no longer wish to pay the fees to maintain.

I believe that the kind of service you mentioned would be incredibly valuable. It sounds like a great service that another organization really should undertake. It is a very good idea.

Groklaw: I was very excited to learn that OIN has a lot of support from prominent technology companies and patent holders. I'm pleased that OIN licenses its patents royalty-free to those who agree not to attack Linux. I have also heard that OIN has some rather important patents. My question is: can you disclose if the big guns have been used? I think we would have heard about it if there was a full-on attack of Linux that OIN defended, but can you either point to any specifics or just answer in the positive or negative if OIN has flexed its mighty muscles yet?

While there are many patent-related activities that become public, the vast majority are handled quietly. We always look to keep our activities discrete and out of the public eye, unless absolutely necessary. If we had filed any lawsuits you would have probably heard about it because they are public proceedings.

Groklaw: Have the licensees committed to making all their future patents and applications available for the Linux environment as well as their existing ones?

Yes. By becoming an OIN licensee, an organization commits to making all of their existing and future patents and patent applications available to other OIN licensees.

Groklaw: The website refers to a partial list of licensees. Why isn't the complete list of licensees available?

You are right; the list of licensees on the website is only a partial list. We are still examining how to list licensees and their applicable patents. Additionally, if some companies don’t want to be listed, we won’t list them. We hope to be able to provide this information in the first quarter of 2007.

Groklaw: Is there a legal text of a covenant or license available?

We do provide copies of the license agreement. If anyone would like to examine the license, they can request a copy by sending an email to license@openinventionnetwork.com. You can also access a link to the email on the License Agreement Page of our website. Please give us your name, name of your company and why you might be interested in becoming a licensee. We will gladly email a copy of the license agreement to anyone who is truly interested in becoming a licensee.

Groklaw: If the US moves to a first to file system, will that impact OIN or the other patent protection projects in any way and if so how?

A first-to-file system is not anticipated to have an impact on OIN. However, it would have the potential to make things easier for many parties. By awarding patents to those who file first, it would eliminate much of the tine-consuming legwork involved in determining which party was the first to create new, original IP.

Groklaw: What about patent trolls? Can OIN proactively go on the offensive in efforts to invalidate patents and any other efforts that patent troll companies like Myhrvold's Intellectual Ventures attempts?

This is another very good question. In our opinion, patent trolls are one of the largest potential impediments to innovation. They provide no benefit to anyone other than their owners and investors. We find them particularly troubling because they don’t create anything, and in fact have the effect of stifling innovation. These organizations demonstrate the very worst behaviors in IP management.

At OIN, we take a proactive approach in terms of acquiring IP to protect the Linux environment, but we cannot take proactive measures against others. We respond to attacks by others on Linux and we act as an effective deterrent for the threats or lawsuits others generate against Linux.

Groklaw: Can OIN proactively go on the offensive in efforts to use patents to attack some of the large SW companies who have been making patent-based threats?

I suppose that I should clarify the difference between a threat and a hostile action. We do not want to act or be seen as a bully in the industry. We want to try and positively engage with organizations that may make negative statements or allusions toward leveraging IP against the Linux environment. As I said earlier, the preferred course of action would be to invite them to become a licensee. In that regard, we try to engage with many companies that have communicated negative things about Linux.

On the other hand, should a business or entity take hostile action, say in the form of a lawsuit, we would fight it vigorously. We would leverage our patent portfolio in response to an aggressor making the first move.

The most important message I want everyone to receive regarding this topic is this: at OIN we believe that discussion and leveraging mutual interests is much more effective for all parties.

Groklaw: How do you respond to this point of view: that it's more effective to let the entire patent system collapse? And how do you see the value of OIN? Is it a buy time strategy targeting an eventual abolition of software patents? Or is it a measure meant as a permanent solution?

Let me answer the questions in reverse order. Our value to the community is that we are one of several activities and organizations that are intended to make attacking Linux a very costly, and ultimately fruitless endeavor. As long as there are patents, and businesses that compete with Linux, we will continue to exist. We designed and built this organization for the long-run.

We do support the existence of legitimate software patents as they relate to technological innovation. We sometimes forget that patents really do protect young, innovative businesses that have developed something truly competitive. Having a patent on a technology enables them to compete with larger, more established businesses without having to worry that their innovation will be stolen. That approach to intellectual property management may be in opposition to that of some participants in the open source community, but it is the right of a company to protect its innovations.

Groklaw: Does OIN and some or all of its member companies support the complete elimination of patents on software?

We at OIN do not believe in the complete elimination of patents for the very reasons I stated in the last question – primarily because it enables emerging companies to benefit from their innovation. But, I am only speaking for OIN. The individual member companies will have to speak for themselves.

Groklaw: Is OIN also pursuing a legislative agenda for eliminating software patents? Is OIN going to do any public policy advocacy or lobbying on the issue? Does OIN have any alliances with any legal defense funds for these issues?

Wow, this is another great question. This goes back to our business model. We are chartered to purchase IP and leverage it to build the Linux ecosystem and defend it against unfriendly, aggressive organizations. We do meet with government officials to discuss ways to further innovation – and we explain to them our business model. In fact, I just got back from a very successful round of meetings with business and government leaders in several Asian countries.

However, we don’t lobby or try to influence the legislative agenda. It would distract us from our IP acquisition and defense activities. There are a number of groups and large vendors that are very successful at doing that. We do whole-heartedly support organizations that want to influence the members of governments to ensure that Linux and open source are allowed to thrive.

Groklaw: If [an OIN] licensee sells one of its patents or applications to a non-licensee; does that take it out of the pool available for the Linux environment?

No, any sale of the patents is subject to the terms and conditions of the license agreement.

In fact, we are beginning to speak more frequently with venture capitalists and their investment companies. We regularly point out the key benefits for a venture-funded company to become a licensee to our patent portfolio. Primarily, it gives them access to a valuable, growing and protected portfolio of Linux-oriented IP – at no cost. We also tell them that if they want to monetize their investments in IP, for whatever reason, we would be willing to discuss acquiring their patents. This provides the venture investors with a bit of a security net, while helping ensure the Linux community has access to key IP.

Groklaw: What constraints are there on combinations of Linux environment components with other hardware and software components to qualify for the royalty-free license?

If you sign our license agreement, you have access to the OIN patent portfolio on a royalty-free basis. We don’t distinguish between Linux-oriented hardware or software patents in terms of the license agreement.

Groklaw: How do you [respond] to the charge that these commons efforts are just formalizing the iron grip the IBMs of the world have on the software market, raising the barriers before new competitors and giving FLOSS people a few bones to chew on so they don't complain? They all seem to protect the existing big FLOSS players : apache, mysql... meanwhile the generous sponsors still apply for new patents not in the commons, and you bet they'll assert them against new FLOSS projects before they get big enough to be included in the commons.

I can’t speak for anyone other than OIN. We do not discriminate against companies based on size, revenues, etc. We want to make sure that all of our licensees are afforded protection.

Groklaw: These compromise strategies can be useful, but one must make sure these initiatives are useful TO EVERYONE and not only to the corporations. For example, What about Debian? What about other Free Software projects apart from Linux? Don´t they deserve the same level of protection?

We do see a huge value in ensuring that all open source projects are protected. While OIN does focus on IP that has a strategic value for Linux, the rest of the open source community benefits because we make our IP portfolio available royalty-free to licensees. The list of components that we classify as part of the Linux environment is extensive.

That being said, we really do concentrate on Linux-related IP. Please remember that this is no small undertaking.

I think that it would be a great benefit to the entire open source community for there to be more organizations like OIN that focus exclusively on other critical, open source initiatives. I believe that this is another opportunity for the open source community.

Groklaw: Is it possible to establish a 'safe harbor', where corporations such as IBM could place the source code for products which used to be commercial software but which have been withdrawn from [the market]? It's a potential treasure trove of 'prior art', since much of this stuff is ancient ... more than 20 years old, so even if it was patented then the patents would have expired. Also it appears to be a potential treasure trove to build new stuff on.

I can tell you that this is a really great idea and that it deserves exploration. This blog is very well read amongst the members of the IP community – and I am sure that this question will spark some discussion internally inside many of the companies that advocate open source software. I will pass this idea along to executives at many of the large software firms. I don’t know if they will move in the direction you suggest – but it is an idea that I believe is well worth pursuing. In fact, I could envision an organization totally dedicated to harvesting this older, not-in-use IP.

Groklaw: I'm told that the reason for not open-sourcing IBM's VisualAge Smalltalk is 'it would be expensive for the necessary legal review'; i.e. IBM might have 3rd-party obligations with respect to some of the code, which would need to be chased down and extinguished before IBM could even give the thing away.

While I oversaw the management of IBM’s IP portfolio for a number of years, I can’t speak on their behalf. I will say that many of the large software vendors are beginning to look for ways to share large swaths of their IP – from operating systems to applications, and everything in-between.

Groklaw: What is OIN’s perception of the recent agreement between Novell and Microsoft?

We recently issued a statement regarding the agreement. That is all we are prepared to say at this time regarding the agreement.

We at OIN believe that the openness and collaborative culture of the Linux community is an engine for innovation. It is clear that there is significant value in Linux community members’ intellectual property and patents.

OIN continues to support the Linux community’s ability to collaborate and innovate. In less than a year, OIN has accumulated more than 100 strategic, worldwide patents and patent applications that span Web / Internet, e-commerce, mobile and communications technologies. These patents are available to all as part of the patent commons that OIN is creating around, and in support of Linux. We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create.


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