It will come as no surprise to regular LWN readers that the patent situation
for mobile Linux (and mobile devices in general) is an enormous mess. Open
Invention Network CEO Keith Bergelt spoke at LinuxCon to outline how he
sees the current landscape and to impart some thoughts on where he sees
things going from here. In addition, he described several ways that the
community can get involved to help beat back the patent threat, which is
most prominent in the mobile space, but certainly not limited to that
Bergelt said that his talk would center around Android, because it is the
"focus of a lot of ire from Microsoft", but that the same
threats exist against any mobile Linux system that becomes popular. The
"threat landscape" is very dynamic, he said, because it is constantly
changing as various players acquire more patents. Google's move to acquire
Motorola Mobility is a "very significant" move that could
also change things.
Clearly, Linux is on the rise in the mobile space. Right now it is Android
that is leading the way, but he is "hopeful there will be
more", citing webOS, LiMo, and MeeGo as possibilities. It is
"really a two-horse race" at the moment, between iOS and
Android, but others may come along. That would be good because it would
offer more freedom of choice, he said.
The rise of Android has been "unprecedented". If you were
looking forward from 18 months ago, you couldn't imagine that something
would displace iOS on mobile devices, but that's what Android has done.
Android now has an "irreversible position in the mobile
space", he said.
He put up a famous (or infamous) graphic that circulated earlier this year
(at right) which showed all of the different patent lawsuits currently
pending against Android devices. While many may have seen that graphic elsewhere,
Bergelt said, he credits Microsoft for it. We should credit who
created the graphic "rather than who is pushing it", he said.
When something is successful, it attracts attention, and that is what is
happening with Android right now, and graphics like this one are evidence
Are the current lawsuits a Linux concern or just an Android concern, he
asked. It would be easy to see them as only a problem for Android itself,
because, other than the kernel, Android shares little with a traditional
Linux platform. But you rarely will see an actual Linux lawsuit, Bergelt
said, because it has been developed for 20 years in the open. Instead,
opponents have "patents on adjacent technologies" that are
used to go after Linux-based systems.
Until MeeGo or webOS mature and get significant market share, "mobile
Linux is Android". Whether one thinks that Android is the
"perfect implementation" of Linux or not, the community needs
to "be in support of the mobile Linux that's out there", he
said. When other mobile Linux systems mature, "we should support
them equally as well".
It is important to "ensure that Android is not pulled off the
shelves", Bergelt said. Microsoft and Apple would like to see
Android pulled and are using their patent portfolios to "slow or stall the
commercial success of Linux". Until other mobile platforms emerge,
threats against Android equate to threats against Linux. Android's
viability is needed to prove that there is a market for Linux-based
platforms, he said.
Secondary market for patents
The stakes are so high that the secondary market for patents is
"overheated", Bergelt said. The "per patent price has
risen to astronomical levels", which is well beyond any reasonable
level for acquiring purely defensive patents. It is not about acquiring
patents for licensing revenue either: "You are not going to get your
money back from licensing them; that's ridiculous", he said.
Companies are recognizing that this "land grab for patents"
provides an opportunity to get more for their patents than they would be
able to otherwise, which is putting more patents on the market.
The Nortel patents (which recently sold for $4.5 billion to a consortium
including Apple and Microsoft) are particularly worrisome, Bergelt said,
because they cover mobile communications and network management. The US
Department of Justice (DoJ) is looking into that transaction, and members
of the community can help inform the agency that there are concerns about
those patents being used in anti-competitive ways. A resolution like what
occurred with the Novell patents, where OIN can license them indefinitely,
would be good. That particular outcome deprived Microsoft of the ability
to own the Novell patents because of its history of anti-competitive
behavior, he said.
Bergelt said that he has some empathy for Microsoft, because the company's
history is weighing it down. "If the only thing you've known is
being a monopolist, that's how you are going to work", he said. But
the DoJ needs accurate information about previous and current behaviors
of the purchasers of the Nortel patents. He encouraged those in the
audience who knew of such behaviors to report them to the agency so that it
could have a "balanced view" of the situation. The DoJ
employees are "bright and accomplished", but that patent-based
anti-competitive behavior is not something they normally consider, he said.
Companies that are pursuing the strategy of using patents to slow or stall
competitors aren't trying to educate anyone, they are, instead,
"interested in threatening people". But, "illegal
behavior is illegal behavior, and that's what they're practicing",
he said. Microsoft and Apple would much rather have it be a duopoly,
rather than dealing with the "disruptive situation" that Linux
brings. Neither of those two companies "have the ability to compete
with Linux in the long term", Bergelt said.
The idea is to "tax" Linux heavily with licensing fees. Microsoft has
pursued a "totem-building strategy", where it gets companies
to license its "Linux patents", often by throwing those patent licenses
into other, unrelated deals. This "creates a presumption"
that the licenses have value. There is also a more targeted component
where the company uses the other licensees—who may be price-insensitive and thus
willing to sign suboptimal agreements—as a weapon against
smaller, more price-sensitive companies. Microsoft will also use its
patents on a particular technology as the centerpiece and throw in other
patent licenses as part of any deal. The FAT filesystem patents, which
expire soon, have been used that way. More recently, "active sync" is
being used as a centerpiece, and the company claims ten patents on that
But Microsoft cannot use the Novell patents in this way, and that's what
Bergelt would like to see happen with the Nortel patents as well. Right now, the
licensing fee that is being charged is $15 per mobile device, but Microsoft
would like to get that up to $30-40 by adding on other patents. Apple's
"touch" patents—which were mostly acquired, not developed by
Apple—are being used in this way as well. This can change the
decisions that vendors and mobile carriers make because at some point it
becomes uneconomical to pay higher per unit royalties, he said.
There is also the problem of "opportunistic patent
aggressors", which are typically "non-practicing entities" (NPEs),
also known as "patent trolls". These organizations are focused on
generating a return. He pointed to Intellectual Ventures (IV) as the
"largest patent troll in the world". IV has used investment
from universities and foundations—fooled by misleading
information into investing in the
company—to amass an enormous patent portfolio of 34,000 worldwide
patents in 9,000 patent families, he said. IV is
"not an innovation company", but is, instead, a "business
designed to use patents to drive return".
The market for patents has led companies like InterDigital to put
themselves on sale, Bergelt said. That company has 2500+ patents that
"almost exclusively relate to mobile communication", and have
generated billions of dollars in traditional licensing revenue. Their
patents still have life left, but the overheated market provides a way to
"cash out" their portfolio.
In addition, financial services firms are pouring "billions"
into patent companies, and they are looking for a return on those
investments, he said.
Fighting the good fight
"Things are going to get worse before they get better",
Bergelt said, which echoes numerous observers of the patent mess. He sees
a need for "more people to work together" to try to,
eventually, fix the problem. There are so many patents that shouldn't have
been issued, "free radicals" he called them, that it will take
a long time to undo that. Part of the problem is that "code is not
searchable in a way that's useful" to determine "prior art", so
patent examiners don't have an easy way to disallow patents based on
earlier implementations of the idea.
There are several defensive patent pools that have spent "billions to
acquire patents". These include RPX, which has 100 members, and AlliedSecurityTrust (AST),
which has 22 members, as well as OIN itself. OIN is a "very peculiar
company" in that has six members but is "tasked with
protecting the community". OIN and its members know that the
community is "where new innovation is coming from", Bergelt
said, and those innovations can be used to build billion dollar companies.
There is work to be done on mobilizing the open source software community
to help fight these patents, he said. There is a "tremendous amount
of prior art" that has not been identified, so OIN and others have
been working on "structures" where developers can document
their ideas in ways that can be used by the patent office. One of those is
the "defensive publication", which is like a "patent without
claims". OIN has spent "tens of thousands of dollars"
to try to educate developers on how to defensively publish their ideas.
In addition, there are opportunities for the community to identify existing
prior art that can limit the claims or possibly invalidate patents that
are in the examination process.
Unlike a technology platform that can be "overtaken by
events", open source is a social phenomenon that is unstoppable,
Bergelt said; we are not going back to the siloed world. Collaboration
"low in the stack", while competing high in the stack, where
companies may have intellectual property interests, is the way new systems
will be developed.
Bergelt also gave an overview of the work that the Linux Defenders project is doing with
help from the community. It
is highlighting patent applications that shouldn't go forward by pointing
out prior art. That means that the community "saves us the problem
of having another free radical". After patents are issued, the
to Patent initiative allows the community to potentially invalidate or
limit the scope of bad patents. But in order for those projects to work,
more community involvement is needed, he said.
The "stakes have been raised", Bergelt said, and the computing
landscape is being reshaped by smartphones. New technologies are going to
allow these devices to go way beyond where they are today, he said, and
that's why he's excited to see things like MeeGo and webOS. Microsoft is
now recognizing that personal computing is undergoing a major shift, and
it (and others) are fighting the competition in the mobile space with any
weapons they can find.
Community engagement is needed in several areas, but identifying and
codifying prior art is the biggest piece. We will see lots of
bidding for the InterDigital portfolio over the next several months, there
will be more IP speculators and trolls trying to cash in, and
anti-competitive actions from larger companies will take place.
We should support Android and the platforms that come after it and remember
that our opponents
"are going to fight like hell",
After Bergelt finished, the Linux Foundation's legal counsel, Karen
Copenhaver, amplified one part of Bergelt's message. The DoJ, she said, is
waiting to let things play out with the Nortel patents to see if there is a
big lawsuit or International Trade Commission (ITC) action using those
patents. But the impact of the patents happens "long before
that" in meetings between the patent consortium and vendors. So it
is imperative that we provide the DoJ information on how these patents
affect Linux well before any litigation occurs, she said. Both Copenhaver and
Bergelt were clearly reaching out to vendors and others who have been
threatened with patent actions by Microsoft, Apple, or other members of
the patent-purchasing consortium.
[ I would like to thank the Linux Foundation for travel assistance to
attend LinuxCon. ]
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