Defensive Patent Pool for Open Source Projects and Businesses

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* Article: Open Invention Network: A Defensive Patent Pool for Open Source Projects and Businesses. Deborah Nicholson. Tim Review, January 2012.

URL = http://timreview.ca/article/511


Abstract

"This article explores how patents impact innovation within free/libre open source software (F/LOSS) businesses and projects. The number of software patent suits brought each year is increasing and is diverting millions of dollars in funds from developers to lawyers. With patent suits on the rise, the US Supreme Court has left the F/LOSS community in a position where it must either wait years for legislation or address the issue of patent suits itself. However, defending the Linux kernel and related technologies is a different challenge than the one that faces proprietary software businesses. This article describes Open Invention Network, an initiative that is designed to meet the particular challenges facing the F/LOSS community and businesses by providing a defensive patent pool."


Excerpts

The Problem

As annoying as software patent suits are for F/LOSS projects, free software does not present a higher risk for infringement compared with proprietary software. As Dan Ravicher (2004) points out, free software is at the same risk, since patents cover the idea or function rather than copyright, which covers the actual lines of code. Proprietary software and free software perform many of the same functions so both types of projects are equally vulnerable to suits for infringement. The good news is that a significant amount of code is being used by many projects, including some with significant resources to protect. For example, the number of projects using Autoconf, the X window system, or OpenGL is vast.

When a suit is brought, the court can choose to issue what is called preliminary injunction, or a mandate to stop the activity that is objectionable to the prosecution before the case is heard in full. As Ravicher (2004) points out, a preliminary injunction against a particular program would be impossible to enforce and there is no way to obtain a meaningful estimate of how many copies of any given piece of code are out in the world. The defendant would be unable to comply with such an order. A permanent injunction can be handed down after a suit is decided. After such a decision, the community would need to code around that particular patent. It is far better for broad and vague patents to be overturned through effective defense and prior art. Prior art refers to anything that has been made available to the public regarding a particular invention, including anything that proves an invention is obvious or not novel. Prior art can keep bad patents from being issued, overturn recent wrongly issued patents, and help with a pending lawsuit.

For F/LOSS projects and companies, lawsuits consume vast amounts of money and time that could be better spent on development, promotion, documentation, or translation. Pamela Jones from Groklaw says: "Knocking a patent infringement case out depends on having the precise weapons to do so. You can't fight something with nothing. If they are going to aim patents at you, you can't just stand there and hope for the best."


The Solution: The Open Invention Network

"To help F/LOSS companies and projects overcome the challenges of patent lawsuits in a way that is compatible with the culture of free software, Open Invention Network (OIN) was launched in 2005. OIN is an intellectual property company that was formed to further software innovation and promote Linux by using patents to create a collaborative ecosystem. OIN established a defensive patent pool to help F/LOSS projects, particularly those associated with Linux. OIN does not seek revenue by asserting its patents, but rather its intent is to allow community members to use its patents in a defensive way against those who attack Linux. Patents owned by OIN are available royalty-free to any company, institution, or individual that agrees not to assert its patents against Linux and related technologies. This enables companies to make significant corporate and capital expenditure investments in Linux – helping to fuel economic growth. OIN is backed by investments from IBM, NEC, Novell, Philips, Red Hat, and Sony. These six companies decided it would be mutually beneficial if they agreed not to sue each other over Linux and related technologies.

An example of OIN’s role comes from late February 2009, when Microsoft filed a patent infringement suit against TomTom on eight patents, including three related to File Allocation Table (FAT) technology. Microsoft simultaneously sought an US International Trade Commission injunction against TomTom shipping product into the United States. TomTom reached out to OIN, as well as Linux Foundation and Software Freedom Law Center, for assistance with the suit. On March 23, 2009, OIN publicly distributed a press release indicating that TomTom had joined the OIN community of licensees. Microsoft settled the suit against TomTom shortly thereafter. TomTom was not required to disclose the terms of its settlement with Microsoft because the terms were deemed to be “nonmaterial” based on disclosure requirements in the Netherlands. Many believe that this particular suit was brought just to scare Linux kernel users. Bruce Perens observed: “What Microsoft really wants from TomTom isn't money, it's support in building fear about Linux in other companies, especially the makers of mobile and wireless devices just like TomTom's own product.” There is a struggle going on for what kind of software we will use in the future. Given that lawsuits are expensive, the courts represent a stacked deck for the wealthier litigant.

In another example, Red Hat and Novell were sued in 2007 by IP Innovations, an NPE that owns 536 patents. OIN supported the search for prior art to help invalidate the three patents using Linux Defenders, an online clearing house for prior art. Post-issue prior art, a term referring to evidence garnered after a patent has been issued, was crowdsourced from the community. Three junk patents based on X windowing systems from 1987 were knocked out. IP Innovations will not be able to sue anyone else over those specific patents, but there are still many more to be struck down. It is notable that IP Innovations is a subsidiary of Acacia Technologies; there has been some speculation about the relationship between Acacia and Microsoft, which could mean deep pockets in addition to many technology patents.

Given the interconnections between F/LOSS projects, OIN would like more projects to become licensees so the F/LOSS community can focus on the external threats as a united front. For F/LOSS companies and projects, this means that OIN's defensive patent pool may be licensed for free. It is in the interest of our founding companies to see suits against the F/LOSS community defended adequately. Future cases over the same patents may refer back to decisions made in previous suits. Precedents built by suits against companies unprepared to fight back hurt the whole community.

OIN is staffed by a small group of F/LOSS community members, attorneys, coders, and outreach personnel who support OIN while also participating in other segments of the community. As with many other examples of the F/LOSS community working together on shared goals, it is impossible to gauge how much mutual success each organization is responsible for. OIN's success cannot be quantified as a separate element from the overall community's continued success. Given the current environment, where patent aggression is on the rise, OIN is proud to play its role in mitigating the risk of patent aggression to the Linux system." (http://timreview.ca/article/511)


Conclusion

"Patent aggression exacts a substantial toll. As calculated by Bessen and colleagues (2011), defendants in lawsuits with NPEs lost an estimated $87.6 billion in litigation costs and lowered stock value. Consider the social utility of $87.6 billion worth of coders, designers, and builders. If those suits are being brought strategically to erode the resources of the F/LOSS community, then this is a fight for the viability of free software. If the courts are not motivated by this cause, then another way must be found, such as that offered by OIN: a defensive strategy for F/LOSS projects and companies." (http://timreview.ca/article/511)