LinuxCon: Keeping open source open
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Keith Bergelt, CEO of the Open Invention Network (OIN), described the circumstances which led the company to recently purchase 22 Microsoft patents, as part of a talk at the first LinuxCon. While the circumstances surrounding that purchase were quite interesting—and indicative of Microsoft's patent strategy—he also described the mission of OIN as a protector of Linux from patent trolls. Because patents are likely to be a threat to Linux for a long time to come, organizations like OIN are needed to allow Linux development to continue with as few patent impediments as possible.
Linux Foundation (LF) executive director Jim Zemlin introduced Bergelt by noting that OIN had done a great service for the Linux industry and community by purchasing those patents, which otherwise would have gone to "non-operating" companies—essentially patent trolls. Bergelt caught wind of the sale and headed off what might have been a potent attack against Linux, Zemlin said.
OIN was started by six companies (Sony, IBM, NEC, Red Hat, Philips, and
Novell) four years ago to anticipate and preempt these kinds of patent
sales, Bergelt said. It is a "very unusual entity
" and when
he was approached to be the CEO, it took some time to understand the
"active benevolence
" that was the mission of OIN. The members
put a "very significant amount of money
" into OIN, which means
that, unlike a pledge fund, the capital is available, allowing Bergelt the
autonomy to make decisions about how to deploy it.
OIN licenses its patents for use by others, with the proviso that those companies not assert their patents against Linux. It is, essentially, a defensive patent pool for the entire Linux community.
He sees the mission of OIN as allowing Linux to "be beneficial, at a
macro level, to economic growth
", by reducing the patent threat.
The most recent patents were purchased from Allied Security Trust (AST), which
represents its 15 members (including three that Bergelt named: HP,
Ericsson, and IBM) by buying patents, licensing them to the members, and
then reselling the remaining rights on the open market. Bergelt contrasted
AST and OIN, saying that the latter is not just representing the six
companies who are its members, but is, instead, "representing
society
".
In his view, "patents will continue to exist
", so it is
important to "ensure that they don't have a negative impact on Linux
in the future
".
Bergelt described Microsoft's
patent suit against TomTom as being a part of the software giant's "totem
strategy
". By getting various companies to
settle patent suits over particular patents, Microsoft can erect (virtual)
totem poles in Redmond, creating a "presumption of patent
relevance
". According to Bergelt, Microsoft tends to attack those
who try to create parity with it in some area, which TomTom did. But, TomTom had overextended
itself with a large
amount of debt from their acquisition of mapping company Tele Atlas. That
made it an opportune time to put the squeeze on TomTom, which is exactly
what Microsoft did.
But, Microsoft was surprised to find that TomTom had allies in the form of
OIN and others.
Originally, Microsoft had asked for an "astronomical
" sum to
settle the suit, but after TomTom joined OIN and countersued Microsoft, the
settlement number became much smaller. In fact, it was small enough that
it was not necessary to report the amount under Dutch securities
regulations. Because the cost to defend a patent suit—even
successfully—could be upwards of $14 million, the TomTom board really
had no choice but to settle.
But, patent suits are generally fairly high-profile, and there are other means to attack Linux companies more quietly. One of those is to sell patents to "non-practicing" (or "non-operating") entities who have no other business besides patent litigation. These trolls do not have any products that could be the target of patent countersuits, which is a standard way of combating patent suits. Bergelt said that $20 billion has been spent this decade by multiple organizations to acquire patents for trolling.
Companies with large patent portfolios have been pressured by investors to use those patents to generate revenue. One way to do that is to sell them to trolls, which brings in money and insulates the company from actually bringing suit itself. In some cases, this has led to patent trolls attacking the customers of the company who originally held the patents, Bergelt said.
Over the last three years, OIN has been one of the three largest patent
acquirers, so it could not have been an oversight that Microsoft did not
approach OIN about buying these patents. The bundle of patents was
expressly presented as being relevant to Linux, which has the effect of
"pointing the troll in the right direction
", according to
Bergelt. He clearly indicated his belief that this was an attempt to
attack Linux by proxy; Microsoft would have "plausible
deniability
" because they could claim they were sold to a defensive
patent pool such as AST.
But, AST is required to resell the patents it acquires, after licensing them to its members, within 12 months of purchasing them. Normally it would sell them to trolls, but Bergelt was able to arrange a purchase by OIN. He noted that if you wanted to get patents to trolls, but keep your hands "clean", selling them to AST is the right way to do it. Going forward, though, there is a patent treaty forming between AST and OIN, which should help alleviate this particular problem in the future.
The Data Tern/Amphion patent suit against Red Hat, which was based on a
relational database patent, was also noted by Bergelt as a successful
defense of free software from a patent threat. Red Hat settled the suit on behalf of
the community as a whole, rather than allow further suits against free
software to be filed. Bergelt said that Data Tern/Amphion were "not
anti-Linux
", in contrast to Microsoft's intent, but were focused
purely on the return on its investment in buying the patent.
Intellectual Ventures is an organization to keep an eye on, Bergelt said, as it has some 23,000 patents, more than any other non-practicing entity. Three weeks ago, it started selling some of its patents—to patent trolls. OIN is also approaching patent trolls to suggest that they contact OIN before suing Linux companies. In some cases, OIN has averted lawsuits by acquiring patent rights from trolls.
The 22 patents in question are listed on the OIN website, but they aren't separated from the rest of the patents that OIN has acquired. They were all issued to either Microsoft or SGI originally, though, Bergelt said, which should assist anyone wishing to study what the patents cover. He noted that they are not the OpenGL patents, as some thought, because those are believed not to read on Linux.
In addition to acquiring patents, OIN has several other projects that are meant to reduce the patent problems for Linux. Peer to patent and post-issue peer to patent are both meant to "crowdsource" the process of finding prior art for patents that are in process or those that have already been issued. The former is meant to help the Patent and Trademark Office (PTO) so that bad patents don't get issued, while the latter looks for bad patents so that they can be submitted to the PTO for re-examination.
Defensive
publications are another strategy that companies can take to protect
their ideas without patenting them. OIN is advocating the use of defensive
publication to create prior art, so that, in the best case, patents will
not be granted covering those ideas. Instead of the "negative
right
" that is created with a patent, defensive publication creates
something that everyone can use, but no one can patent. OIN's lawyers will
review defensive publication submissions for free, making any necessary
changes and then adding them to the IP.com
database which is used for prior art searches by the PTO.
Companies who want to patent their ideas can also use defensive publication
by patenting the core idea and wrapping that core with published
information. This is happening more frequently because the cost of a
patent application is becoming "prohibitive
". OIN is
encouraging the community to use
defensive publications to protect its ideas as well.
Bergelt stressed that OIN is not set up as an anti-Microsoft organization,
as they are focused on any entity threatening Linux with patents. In the
most recent case that was Microsoft, but his expectation is that
"Microsoft will go through a painful transition
", but will
eventually join the free software community. The benefits of free software
development will be too strong to resist.
In closing, both Zemlin and Bergelt mentioned the Linux Defenders project, which is a joint venture between OIN, LF, and the Software Freedom Law Center. It is the umbrella organization for the peer to patent efforts along with the defensive publication initiative, but it also seeks to counsel companies who have been approached about patents that read on Linux. Zemlin noted that the traditional approach is to get a potential victim to sign a non-disclosure agreement (NDA) before discussing the patents in question. He stressed that companies should get in touch with Linux Defenders before signing the NDA, as that seriously limits what help it can provide.
In response to questions from the audience, Bergelt noted that there is
some hope for patent reforms, which may "narrow the space
" for
trolls to work in. Judges are starting to recognize the problem he said,
but wholesale changes are not likely in the cards. In addition, he noted
that even defining "non-practicing entity" is difficult, pointing to
Qualcomm as an example of a company that was not very successful using its
patents in products, but quite successful in licensing them to others.
He also sees hope at the PTO. Fewer poor patents are being issued and far
fewer patents are being issued overall. Things are changing, but they will
never be as good as we want them to be, he said.
(Log in to post comments)
LinuxCon: Keeping open source open
Posted Sep 23, 2009 16:55 UTC (Wed) by ncm (guest, #165) [Link]
LinuxCon: Keeping open source open
Posted Sep 24, 2009 10:48 UTC (Thu) by epa (subscriber, #39769) [Link]
I had thought that the suit against TomTom was a defensive suit, because TomTom first threatened Microsoft with a software patent lawsuit. The source is this Slashdot comment which admittedly is not the most reliable news source. But it would have been better for the article to address this, whether confirming or denying it.In my opinion, countersuing someone who sues (or threatens to sue) over a software patent is quite a different matter from aggressively using swpats against another company which has not fired first. Which of the two cases describes the TomTom VFAT settlement?
LinuxCon: Keeping open source open
Posted Sep 24, 2009 14:39 UTC (Thu) by wookey (guest, #5501) [Link]
http://www.groklaw.net/article.php?story=20090320000835463
LinuxCon: Keeping open source open
Posted Sep 24, 2009 15:33 UTC (Thu) by epa (subscriber, #39769) [Link]
I didn't see anything in that Groklaw article saying that Microsoft's lawsuit wasn't in response to a patent threat from TomTom. (Not that it is Groklaw's job to refute every random theory floating around, but I don't see how the article you linked to is relevant here.)You are most likely right about TomTom as a company; I knew they had fought Garmin in court but it appears that was defensive (see here for example).
LinuxCon: Keeping open source open
Posted Sep 24, 2009 15:57 UTC (Thu) by jhhaller (guest, #56103) [Link]
LinuxCon: Keeping open source open
Posted Sep 27, 2009 22:59 UTC (Sun) by MattPerry (guest, #46341) [Link]
> TomTom first threatened Microsoft with a software patent lawsuit. The
> source is this Slashdot comment which admittedly is not the most reliable
> news source.
The parent comment to the one you linked to says otherwise and actually cites a source. Note that the comment you linked to provides nothing to back up their claim.
LinuxCon: Keeping open source open
Posted Sep 28, 2009 10:55 UTC (Mon) by epa (subscriber, #39769) [Link]
It just says 'The two companies had failed to reach a patent-licensing agreement after more than a year of talks.'
I would be interested to see some source that unambiguously states that Microsoft was the aggressor in this case, or on the other hand, one that unambiguously states that Microsoft sued only after being notified of software patent infringement by TomTom.
LinuxCon: Keeping open source open
Posted Sep 28, 2009 14:03 UTC (Mon) by MattPerry (guest, #46341) [Link]
LinuxCon: Keeping open source open
Posted Sep 28, 2009 14:34 UTC (Mon) by epa (subscriber, #39769) [Link]
That might be how it happened, or it might not be. But the article doesn't tell you one way or the other. It just tells you which of the two cases was first to court, which isn't very informative.
Patent numbers?
Posted Sep 24, 2009 0:33 UTC (Thu) by brouhaha (subscriber, #1698) [Link]
Are the actual patent numbers available anywhere? It would be nice to see the details of what is covered.
Patent numbers?
Posted Sep 30, 2009 11:32 UTC (Wed) by codepope (guest, #54022) [Link]
Sure, if I can publicise myself, Patently Opaque contains all 22 patents listed and comments from AST
The problem with OIN
Posted Sep 24, 2009 1:06 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]
Most of the principal OIN members are big believers in software patents, have strong software patent portfolios, and want to extend patents everywhere (Red Hat's an exception). They have an interest in protecting Linux, but they also have an interest in growing their software patent positions.
LinuxCon: Keeping open source open
Posted Sep 24, 2009 1:08 UTC (Thu) by lysse (guest, #3190) [Link]
LinuxCon: Keeping open source open
Posted Sep 24, 2009 2:23 UTC (Thu) by seanMcGrath (guest, #1563) [Link]
highest bidder, bad laws will continue to be passed.
LinuxCon: Keeping open source open
Posted Sep 24, 2009 4:01 UTC (Thu) by lysse (guest, #3190) [Link]
LinuxCon: Keeping open source open
Posted Sep 24, 2009 5:08 UTC (Thu) by felixfix (subscriber, #242) [Link]
LinuxCon: Keeping open source open
Posted Sep 24, 2009 16:54 UTC (Thu) by NAR (subscriber, #1313) [Link]
I seem to remember that about a decade ago the Hungarian Parliament discussed an act about telecommunication (I believe it was the LXV. act from 1997). Totally different parties happened to submit the same text, which also seemed to come from various telecommunication companies. This act seems to fit the laws passed in keen pursuit of "highest bidder". By the way, this act is mostly about the interworking of the communication (e.g. mobile telephone) networks.On the other hand the XXV. act from 1920 was clearly made for the "social good". It essentially created an upper limit for the number or Jewish students at various universities.
I'm a lot more suspicious of people who're "working for the social good" than those those who're simply selfish.
LinuxCon: Keeping open source open
Posted Sep 24, 2009 17:19 UTC (Thu) by felixfix (subscriber, #242) [Link]
LinuxCon: Keeping open source open
Posted Sep 25, 2009 0:03 UTC (Fri) by giraffedata (guest, #1954) [Link]
I believe government officials usually pass laws for social good, following their honest opinion of what is best for society. Narrow minded people who have a different opinion like to ascribe the difference to evilness on the other guy's part.
I also believe that what the highest bidder wants is usually for the social good. That's because the highest bidder got the money for the bid from society, which gave it to the bidder voluntarily in exchange for what the bidder gives them.
Lobbyists do write legislation, which is then signed by legislators, and there's nothing suspicious about that. It doesn't imply the legislator sponsored the legislation for any reason other than that he personally believes every word of it is best for society. It does mean that the cost of creating legislation is being borne by the segments of society that benefit from it the most.
LinuxCon: Keeping open source open
Posted Sep 25, 2009 6:29 UTC (Fri) by nix (subscriber, #2304) [Link]
(Hint: sometimes -- often -- lobbyists like to write laws so that they can
get special advantages or privileges from those laws. That's pretty much
where the word privilege originated.)
LinuxCon: Keeping open source open
Posted Sep 25, 2009 8:33 UTC (Fri) by giraffedata (guest, #1954) [Link]
sometimes -- often -- lobbyists like to write laws so that they can get special advantages or privileges from those laws.
You have to go further than that, because a lobbyist can only draft the law. For it to take effect, he has not only to get someone else to sponsor it, but often hundreds of other people to vote for it. So you have to be way more cynical and propose that all the legislators somehow get special benefits -- bribes, I guess -- at the expense of society. And assuming you don't believe you and your friends are so immoral, you have to believe that legislators are cut from a different cloth from the rest of us, and if legislators are elected, that requires even more cynicism because it means the evil bastards somehow fool millions of people, generation after generation, into not recognizing them for the thieves that they are.
LinuxCon: Keeping open source open
Posted Sep 25, 2009 13:41 UTC (Fri) by felixfix (subscriber, #242) [Link]
LinuxCon: Keeping open source open
Posted Sep 26, 2009 4:40 UTC (Sat) by lysse (guest, #3190) [Link]
LinuxCon: Keeping open source open
Posted Sep 26, 2009 5:38 UTC (Sat) by felixfix (subscriber, #242) [Link]
LinuxCon: Keeping open source open
Posted Sep 26, 2009 21:19 UTC (Sat) by lysse (guest, #3190) [Link]
I didn't even claim to be making sarcastic comments. I didn't reply to your mention of sarcasm.
I am amused at the concept of your passing judgement on a thread you have demonstrated an incapacity to even follow. Amused enough to have gone back, temporarily, on my previous decision to ignore you.
And it's not even a long thread! *sigh*
LinuxCon: Keeping open source open
Posted Sep 24, 2009 2:54 UTC (Thu) by pabs (subscriber, #43278) [Link]
LinuxCon: Keeping open source open
Posted Sep 24, 2009 8:27 UTC (Thu) by k3ninho (subscriber, #50375) [Link]
You still need to lobby for change in U.S. Patent Law on this: despite the defensive publication there is still a year-long grace period in which another party may have come up with the thing before applying for a patent for the method you've made publicly available.
LinuxCon: Keeping open source open
Posted Sep 27, 2009 14:03 UTC (Sun) by kleptog (subscriber, #1183) [Link]
I thought there was some progress is getting the US onto a first to file system, but apparently it hasn't gone anywhere.
LinuxCon: Keeping open source open
Posted Sep 27, 2009 23:05 UTC (Sun) by MattPerry (guest, #46341) [Link]
LinuxCon: Keeping open source open
Posted Sep 27, 2009 23:28 UTC (Sun) by dlang (guest, #313) [Link]
LinuxCon: Keeping open source open
Posted Oct 4, 2009 0:01 UTC (Sun) by Wol (subscriber, #4433) [Link]
So if somebody else patents something I'm already doing, and I've made no secret of what I'm doing, their patent is dead. "Your patent is dated 1st October. Here's an article describing my process dated 30th September. Please Mr Judge, Prior Art, I can't be violating his patent. Summary judgement, please".
And that really would be that.
Cheers,
Wol
No angle on the European situation?
Posted Sep 24, 2009 12:33 UTC (Thu) by ber (subscriber, #2142) [Link]
What about software-patents in other parts of the world? What about the possible effects on GNU/Linux? The US-situation seems to be a heavy disadvantage especially for people there.Helping to invalidate patents is helping the pro-patent lobby in my view. One main argument for patent is that they would be harmless if it wasn't for the bad, trivial patents. This holds on to the idea that just evaluation of patent applications needs fixing - not the system itself.
BTW: It would be really interesting to make the distinction between Linux (the famous kernel) and operating systems based on it and their components. Does OIN also protect the other Free Software components within a operating system, e.g. the C-library or is it only about the kernel?
No angle on the European situation?
Posted Sep 24, 2009 19:32 UTC (Thu) by rahulsundaram (subscriber, #21946) [Link]
Imaginary market
Posted Sep 24, 2009 21:49 UTC (Thu) by rwmj (subscriber, #5474) [Link]
It's just worth noting that this is an entirely imaginary market, in imaginary property, enforced because our [Western] governments enforce it.
It's not real, and by voting against it, we can get rid of it entirely... It will disappear in a puff of imaginary smoke.
Rich.
Imaginary market
Posted Sep 25, 2009 6:33 UTC (Fri) by man_ls (guest, #15091) [Link]
Not a very convincing argument IMHO. Imaginary markets are all around us: from stock markets to securities to currency exchanges to brands to actual, down-to-Earth patents. All existing only because they are enforced by our governments. If we were to do away with them we would be left with gold, coffee and real estate markets -- and even then most of the raw material that changes hands nowadays is never seen either by the buyer or the seller.Better center on the consequences (perceived and actual) of this particular imaginary market.