Open Invention Network (OIN) CEO Keith Bergelt came to the Linux Foundation
Collaboration Summit to update attendees on OIN's recent expansion of the
"Linux System Definition" as
well as its plans for the future. The system definition is important
because the packages listed there are eligible for patent protection via
OIN and its members' patents. The update was significant, but there are
other interesting things going on at OIN as well.
OIN was formed nearly eight years ago, "in the wake of SCO", Bergelt said.
SCO "went away", but that case served as a wakeup call to some of the
companies that were making big commitments to Linux. They recognized that
patents could end up being a real problem for Linux. Three companies in
particular, IBM, Red Hat, and Novell, got together to try to combat that
problem; they were later joined by NEC, Phillips, and Sony.
Those companies invested "hundreds of millions" of dollars in a standing
fund to acquire patents.
In other businesses, there are a fixed number of competitors that one can
build up patent cross-licensing agreements with. But Linux has "neither a
head or a tail", Bergelt said, so it can't really handle patents in the
standard way. The companies realized that Linux is not a model that will deal well
with patent attacks. The idea behind OIN was that those companies would
share their patents on a "fully paid-up basis" (i.e. without requiring
royalties) among themselves, but also with others who joined the
The basic idea, Bergelt said, was to allow freedom of choice for those who
might be looking to adopt Linux by removing some of the patent
uncertainty. If Linux is not the best choice, then "shame on the
developers", but in most cases it is the best choice when it can compete
fairly. Open source does not operate in a vacuum, but is faced with a
world where litigation is a vehicle for companies that cannot compete in
the marketplace, he said.
OIN has hundreds of patents in "dozens of portfolios", he said, some of
which are fundamental or essential in "several key areas". It does 45-50
patent applications each year, as well as filing multiple defensive
publications. The defensive publications are meant to combat aggressive
patenting by companies outside of the Linux ecosystem, which often results
in them "patenting things that open source had developed long ago". These
efforts are meant to deal with the excessive number of patents that have
been granted in the last 20 years.
The patents that read on the packages that make up the Linux System
Definition are available to OIN licensees on a
royalty-free basis. That includes the patents that OIN owns as well as any
that are owned by the licensees. In addition, licensees must "forbear
Linux-related litigation" using their patents, he said.
OIN is also involved in defensive activities of various sorts. It gives
assistance to companies that are undergoing patent attacks. That includes finding people that can help the company fend off
the attack or for OIN to help them directly. Giving companies ideas of
where they might be able to acquire useful patents to head off an attack,
consulting on how to create a formidable defense, and offering up
information about prior art are the kinds of things that OIN
will do. Typically the attack is really not against just the one company,
but is part of a larger strategy from the patent aggressor, which means
that the information gathered and shared may be able to be reused at some
There is also the Linux Defenders
project which OIN helped to start with the Software Freedom Law Center and
the Linux Foundation four years ago. It seeks to work with the community
to identify prior art for
patent applications to potentially cause them to be rejected. In addition,
it tries to invalidate patents that have already been granted by finding
prior art. OIN is considering becoming "much more aggressive" in those
endeavors, Bergelt said, and may be hiring more people to work on that.
Part of that effort would be to work with projects and community members to
help "defuse the time bomb" that patents held by foes represent.
There are currently over 440 OIN licensees, he said. The organization
holds 400+ US patents and 600+ when foreign patents are added in. It has
also created more than 250 defensive publications.
Those defensive publications generally aren't created by project members,
Bergelt said, in answer to a question from the audience. OIN does not want
community members to have to become experts in defensive publications and,
instead, will do the "heavy lifting" to create them. Anything that a
developer thinks is "new or novel" has the potential to be written up as a
defensive publication. The bar is "not very high", he said, as the patents
that are granted will attest. The bar is even lower for defensive
Community members do not have to codify their idea, if they can just
verbalize it, OIN can turn that into a
defensive publication. Those publications can then work as an "anti-toxin"
of sorts against bad patents and applications. OIN has been trying to get
graduate students involved, as well, to work on the publications. It is
"inventing in a way that prevents others from getting bad patents". One
question that has come up in conversations with Bradley Kuhn, he said, is
if we eliminate all of the bad patents, are we left with really good
patents? The answer is that what's left after getting rid of the bad
patents is "very limited".
Expanding the Linux System Definition
In its effort to "demilitarize the patent landscape", OIN expanded
the Linux System Definition in March. The number of packages covered
rose from 1100 to 1800 and will grow further over time, he said. OIN is
looking at doing yearly updates to the definition, but it may do a mobile
Linux update this (northern hemisphere) summer. There are already some
packages that have been nominated for inclusion and he encouraged everyone
to look at the definition
and lists of packages in order to nominate those they thought should be
From the audience, Kuhn asked about whether the decisions on adding or not
adding packages could be made transparent, so that the community could get
feedback on its nominees. Bergelt said that OIN will explain its
decisions, and will be putting up a web page for nominations sometime
soon. He said that Simon Phipps had already recommended LibreOffice, for
Linux distributions have moved to that office suite.
One of the main efforts that OIN is now making is to reach out to the
community. He said that while he wears a suit, many of the people that
work for him do not and are members of the community. The organization is
attending more events, and trying to involve the community in its efforts.
In addition, it is doing more workshops, rather than talks, to try to get
the community up to speed on the defensive publication anti-toxin.
Attending various events has "made me realize what Linux is about", he
said, which is "people sharing ideas". Those ideas can get "codified as
either swords or shields".
OIN has expanded its staff recently as well. Deb Nicholson was named as the
community outreach director for OIN. In addition, Linux Defenders has added
Andrea Casillas as its director and Armijn Hemel as its European
Unique economic benefits
OIN is also leading an effort to highlight the "unique economic benefits
from open source" to the International Trade Commission (ITC). Patent
trolls and others are increasingly bringing complaints of patent
infringement to the ITC, but the only remedy it has available is to order
an injunction against the import of the product. Those injunctions can
"put you out of business" because it can take $8-12 million to defend
against an ITC injunction. That process takes a year, he said, which
sounds good in comparison to patent suits which often stretch much longer,
but it means that a company needs "lots of fast money" to defend
themselves, so most are willing to settle for a much higher license fee
than the market would normally bear.
Those higher license fees are artificially raising the total cost of
ownership (TCO) for the Linux platform. It is a "purposeful process" to
take away choice by raising the cost of running the Linux platform. OIN is
attempting to have the US Congress recognize this and instruct the ITC to
allow a parallel District Court process hear the case, as it can make
decisions other than just injunctions. Paying some license fee is "not a
death knell", Bergelt said, while unfairly high costs are. We want a
"yield sign if not a stop sign" to the ITC-ordered injunctions.
Another initiative that OIN is working on with Google and IBM is something
that Bergelt is (temporarily) calling "Code Search". It will be a way to
search pre-existing code and "unstructured project data" for prior art.
It will make existing code searchable and could be used by the patent examiners as well as the
community and OIN. There will be an announcement "soon" about that project.
Bergelt then turned to the current patent wars, and what they mean for
Linux, especially in the mobile arena. Microsoft has been using 25 patents
in its litigation over mobile devices. It is not just selling licenses to smartphone
vendors, but is going after the contract manufacturers as well. Both are paying
license fees in many cases, so Microsoft is now turning to going after the
mobile carriers as well.
There is a strategic agenda at play, he said. In difficult times,
companies that appear to be strange bedfellows will come together to attack
a rival. The attacks are tightly coordinated and multi-tiered to
artificially raise the TCO. Established companies are comfortable with
reduced innovation because that means there are fewer threats to their
There are lots of speculators out there who have spent "billions to
acquire patents" and expect a return on that investment. But there are
also operating companies that are threatened by Linux and open source. He
is wondering what will happen with HP's Palm patent portfolio, for
example. Patent aggregators are being approached to sell their portfolios
to operating companies; those companies may want them for defensive or
offensive purposes. In addition, we have seen things like Microsoft's
investment that ensured Nokia's relationship with MeeGo ended. Mobile
Linux is being attacked from many different directions at this point.
But, efforts like Tizen, webOS, and MeeGo (which is still being used by KDE
and others) add resilience to the mobile Linux patent situation. It is
much easier for foes of Linux to fight a one front war against Android,
rather than have to deal with Tizen, webOS, and MeeGo, he said. He is
"very encouraged" to see that there are multiple options for mobile Linux.
There are lots of antagonists lined up against Linux. Some companies are
funding patent trolls and providing them with patents to attack other
companies. But, so far, we haven't
seen funding for direct attacks
by patent trolls against Linux, though it could happen. The key is to watch
where trolls are using patents from known Linux antagonists, those kinds of
attacks could turn to Linux next. There is a lot of litigation activity
right now, but he sees things moving in a direction where eventually choice
in the market will win out over attempts to artificially raise prices
through patent attacks.
Bergelt painted a picture of a complex and active patent attack landscape,
particularly against mobile devices. But he also described lots of things
that OIN and others are doing to combat those attacks. Reform at the ITC
level could effect some major changes to the tactics that are currently
being employed, though it is unclear how likely that reform actually
is. Until there is some kind of major patent overhaul in the US (and
elsewhere, really), the OIN projects and efforts will clearly be needed.
Whether they will be enough, eventually, remains to be seen.
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