The Open Invention Network, or OIN, is waging a global campaign to keep Linux out of harm’s way in patent litigation. Its efforts have resulted in more than 1,000 companies joining forces to become the largest defense patent management organization in history.

The Open Invention Network was created in 2005 as a white hat organization to protect Linux from license assaults. It has considerable financial backing from original board members that include Google, IBM, NEC, Novell, Philips, Red Hat and Sony. Organizations worldwide have joined the OIN community by signing the free OIN license.

Organizers founded the Open Invention Network as a bold endeavor to leverage intellectual property to protect Linux. Its business model was difficult to comprehend. It asked its members to take a royalty-free license and forever forgo the chance to sue other members over their Linux-oriented intellectual property.

However, the surge in Linux adoptions since then — think server and cloud platforms — has made protecting Linux intellectual property a critically necessary strategy.

Over the past year or so, there has been a shift in the Linux landscape. OIN is doing a lot less talking to people about what the organization is and a lot less explaining why Linux needs protection. There is now a global awareness of the centrality of Linux, according to Keith Bergelt, CEO of OIN.

“We have seen a culture shift to recognizing how OIN benefits collaboration,” he told LinuxInsider.

How It Works

The Open Invention Network uses patents to create a collaborative environment. This approach helps ensure the continuation of innovation that has benefited software vendors, customers, emerging markets and investors.

Patents owned by Open Invention Network are available royalty-free to any company, institution or individual. All that is required to qualify is the signer’s agreement not to assert its patents against the Linux system.

OIN ensures the openness of the Linux source code. This allows programmers, equipment vendors, independent software vendors and institutions to invest in and use Linux without excessive worry about intellectual property issues. This makes it more economical for companies to repackage, embed and use Linux.

“With the diffusion of copyright licenses, the need for OIN licenses becomes more acute. People are now looking for a simpler or more utilitarian solution,” said Bergelt.

OIN legal defenses are free of charge to members. Members commit to not initiating patent litigation against the software in OIN’s list. They also agree to offer their own patents in defense of that software. Ultimately, these commitments result in access to hundreds of thousands of patents cross-licensed by the network, Bergelt explained.

Closing the Legal Loopholes

“What OIN is doing is very essential. It offers another layer of IP protection, said Greg R. Vetter, associate professor of law at the University of Houston Law Center.

Version 2 of the GPL license is thought by some to provide an implied patent license, but lawyers always feel better with an explicit license, he told LinuxInsider.

What OIN provides is something that bridges that gap. It also provides explicit coverage of the Linux kernel. An explicit patent license is not necessarily part of the GPLv2, but it was added in GPLv3, according to Vetter.

Take the case of a code writer who produces 10,000 lines of code under GPLv3, for example. Over time, other code writers contribute many more lines of code, which adds to the IP. The software patent license provisions in GPLv3 would protect the use of the entire code base under all of the participating contributors’ patents, Vetter said.

Not Quite the Same

Patents and licenses are overlapping legal constructs. Figuring out how the two entities work with open source software can be like traversing a minefield.

“Licenses are legal constructs granting additional rights based on, typically, patent and copyright laws. Licenses are thought to give a permission to do something that might otherwise be infringement of someone else’s IP rights,” Vetter said.

Many free and open source licenses (such as the Mozilla Public License, the GNU GPLv3, and the Apache Software License) incorporate some form of reciprocal patent rights clearance. Older licenses like BSD and MIT do not mention patents, Vetter pointed out.

A software license gives someone else certain rights to use the code the programmer created. Copyright to establish ownership is automatic, as soon as someone writes or draws something original. However, copyright covers only that particular expression and derivative works. It does not cover code functionality or ideas for use.

Patents cover functionality. Patent rights also can be licensed. A copyright may not protect how someone independently developed implementation of another’s code, but a patent fills this niche, Vetter explained.

Looking for Safe Passage

The mixing of license and patent legalities can appear threatening to open source developers. For some, even the GPL qualifies as threatening, according to William Hurley, cofounder of Chaotic Moon Studios and IEEE Computer Society member.

“Way back in the day, open source was a different world. Driven by mutual respect and a view of code as art, not property, things were far more open than they are today. I believe that many efforts set upon with the best of intentions almost always end up bearing unintended consequences,” Hurley told LinuxInsider.

Surpassing the 1,000-member mark might carry a mixed message about the significance of intellectual property right protection, he suggested. It might just continue to muddy the already murky waters of today’s open source ecosystem.

“At the end of the day, this shows some of the common misconceptions around intellectual property. Having thousands of developers does not decrease risk — it increases it. The more developers licensing the patents, the more valuable they appear to be,” Hurley said. “The more valuable they appear to be, the more likely someone with similar patents or other intellectual property will try to take advantage and extract value for their own financial gain.”

Sharing While Competing

Co-opetition is a part of open source. The OIN model allows companies to decide where they will compete and where they will collaborate, explained Bergelt.

“Many of the changes in the evolution of open source in terms of process have moved us into a different direction. We had to create channels for collaboration. Otherwise, we would have hundreds of entities spending billions of dollars on the same technology,” he said.

A glaring example of this is the early evolution of the cellphone industry. Multiple standards were put forward by multiple companies. There was no sharing and no collaboration, noted Bergelt.

“That damaged our ability to access technology by seven to 10 years in the U.S. Our experience with devices was far behind what everybody else in the world had. We were complacent with GSM (Global System for Mobile Communications) while we were waiting for CDMA (Code Division Multiple Access),” he said.

Changing Landscape

OIN experienced a growth surge of 400 new licensees in the last year. That is indicative of a new trend involving open source.

“The marketplace reached a critical mass where finally people within organizations recognized the need to explicitly collaborate and to compete. The result is doing both at the same time. This can be messy and taxing,” Bergelt said.

However, it is a sustainable transformation driven by a cultural shift in how people think about collaboration and competition. It is also a shift in how people are embracing open source — and Linux in particular — as the lead project in the open source community, he explained.

One indication is that most significant new projects are not being developed under the GPLv3 license.

Two Better Than One

“The GPL is incredibly important, but the reality is there are a number of licensing models being used. The relative addressability of patent issues is generally far lower in Eclipse and Apache and Berkeley licenses that it is in GPLv3,” said Bergelt.

GPLv3 is a natural complement for addressing patent issues — but the GPL is not sufficient on its own to address the issues of potential conflicts around the use of patents. So OIN is designed as a complement to copyright licenses, he added.

However, the overlap of patent and license may not do much good. In the end, patents are for offensive purposes — not defensive — in almost every case, Bergelt suggested.

“If you are not prepared to take legal action against others, then a patent may not be the best form of legal protection for your intellectual properties,” he said. “We now live in a world where the misconceptions around software, both open and proprietary, combined with an ill-conceived and outdated patent system, leave us floundering as an industry and stifling innovation on a daily basis,” he said.

Court of Last Resort

It would be nice to think the presence of OIN has dampened a flood of litigation, Bergelt said, or at the very least, that OIN’s presence is neutralizing specific threats.

“We are getting people to lay down their arms, so to say. At the same time, we are creating a new cultural norm. Once you buy into patent nonaggression in this model, the correlative effect is to encourage collaboration,” he observed.

If you are committed to collaboration, you tend not to rush to litigation as a first response. Instead, you think in terms of how can we enable you to use what we have and make some money out of it while we use what you have, Bergelt explained.

“OIN is a multilateral solution. It encourages signers to create bilateral agreements,” he said. “That makes litigation the last course of action. That is where it should be.”

Bottom Line

OIN is working to prevent Linux patent challenges, Bergelt is convinced. There has not been litigation in this space involving Linux.

The only thing that comes close are the mobile wars with Microsoft, which focus on elements high in the stack. Those legal challenges may be designed to raise the cost of ownership involving the use of Linux products, Bergelt noted.

Still, “these are not Linux-related law suits,” he said. “They do not focus on what is core to Linux. They focus on what is in the Linux system.”