Mozilla Joins Open Invention Network (The Mozilla Blog)

The press release and Mozilla's comments aren't very clear, or at least not convincing in key areas. For instance, Mozilla says that "[a]s a licensee, we’ll have access to OIN resources in case we’re threatened by operating entities with patents." By limiting this to "operating entities", they already admit implicitly that OIN can't help if non-operating entities, or "trolls", attack them. But more importantly, there is nothing in the OIN license agreement that provides a licensee (in this case, Mozilla) with any guaranteed access to any "OIN resources."

I'm sorry to say so, but given that Mozilla is an extremely deep-pocket foundation, they will sooner or later be required to pay royalties to different kinds of patent holders. There's no carve-out in patent law that says you can't collect money from a non-profit. OIN membership is unlikely to really help Mozilla in that event.

I guess one area in which Mozilla has serious problems is that of video codecs. They'd like to push VP8 through, alongside Google and Opera. But it's rather uncertain whether VP8 is "patent-free". In my opinion, there would be nothing wrong with Mozilla paying royalties to MPEG LA because MPEG LA's annual per-customer royalty cap wouldn't limit Mozilla's ability to still make Firefox available to large numbers of end users. Should MPEG LA indeed hold patents that read on VP8 and create a pool, I can't imagine that OIN would be able to do anything meaningful for Mozilla.

To address your question of OIN activities, it's true that they are involved with the "Linux Defenders" initiative and defensive publication is claimed to be part of its activities, although I actually believe that if people turn to them with interesting patentable ideas, they'll offer them a bounty in order to let them obtain a patent on them. By claiming it's just about defensive publication they simply want to encourage FOSS developers to feed them with patentable ideas.

There are three major purposes that OIN is supposed to serve. I explained them in more detail at the beginning of this blog post. To sum it up here, they buy up patents at auctions (which is almost like trying to empty the Atlantic Ocean with a bucket); with the patents they acquire they want to create a mutually assured damage kind of threat in order to deter aggressors (however, a licensee like Mozilla would not have any contractual right to ask OIN to assert any of its patents against an aggressor, and there's no indication that any OIN patent has ever scared any aggressor in any significant way; being a non-operating entity itself, OIN wouldn't even be able to obtain an injunction in a US court due to eBay vs. MercExchange, nor could they take a case to the US International Trade Commission); and through the OIN licensee agreement, a cross-license is established between all licensees with respect to a constantly changing, arbitrary list of program files.

Looking at all of the patent assertion that's going on, there's no reason to assume that OIN has ever been able to help a FOSS company or other entity under patent attack. For an organization that's been around for five years, the absence of any credible success story can be seen as a failure, or more skeptically speaking, one may wonder what they're really up to. Given they've spent north of $100 million to acquire patents, I believe there's a hidden agenda and it's about disadvantaging FOSS competitors of the six OIN owner companies.

That clashes over patents held by OIN aren't in your daily news feed doesn't mean they didn't happen, or that the mere existence of the patent pool hasn't deterred many would-be miscreants.