Open Invention Network in the Spotlight

Back in September, Mozilla made an announcement: This week Mozilla joined Open Invention Network as a licensee. OIN is an organization which helps protect the Linux ecosystem by building a variety of defenses against patent attacks. These...

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Back in September, Mozilla made an announcement:

This week Mozilla joined Open Invention Network as a licensee. OIN is an organization which helps protect the Linux ecosystem by building a variety of defenses against patent attacks. These defenses include both traditional mechanisms, like defensive patent pools, and more innovative approaches, like the Linux Defenders project, which uses a variety of methods to proactively prevent the publication of particularly egregious patents. As a licensee, we'll have access to OIN resources in case we're threatened by operating entities with patents, and over time we'll likely become more involved in providing our own ideas and resources to OIN projects.

At the time, I didn't pay much notice. Although I knew OIN, I wasn't particularly sanguine about its approach:

Open Invention Network is refining the intellectual property model so that important patents are openly shared in a collaborative environment. Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System. This enables companies to make significant corporate and capital expenditure investments in Linux — helping to fuel economic growth.

Open Invention Network ensures the openness of the Linux source code, so that programmers, equipment vendors, ISVs and institutions can invest in and use Linux with less worry about intellectual property issues. Its licensees can use the company's patents to innovate freely. This makes it economically attractive for companies that want to repackage, embed and use Linux to host specialized services or create complementary products.

Open Invention Network has considerable industry backing. It was launched in 2005, and has received investments from IBM, NEC, Novell, Philips, Red Hat and Sony.

To be sure, the aims are noble enough, but its patent portfolio seemed so small compared to the vast array of software patents granted in the US that it was hard to see it offering much protection. But when I heard that the Document Foundation (the developer of LibreOffice) and KDE were also joining Open Invention Network, I obviously wondered why there was this sudden interest in a scheme that had been going for some years now.

The answer is not too hard to find. As the last paragraph in the quotation above indicates, one of those investing in OIN was Novell. This presumably means that it has pledged that its patents won't be used against any other OIN members. As we know, interesting things will be happening to at least some of those patents:

Novell also announced it has entered into a definitive agreement for the concurrent sale of certain intellectual property assets to CPTN Holdings LLC, a consortium of technology companies organized by Microsoft Corporation

My reading of the OIN licence agreement is that the pledges not to use patents against OIN members persist in this case (but IANAL):

3.2 If a Subsidiary of You ceases to be a Subsidiary on a given date, the license granted in Section 1.1 to such Subsidiary shall terminate on such date. If an Affiliate of You ceases to be an Affiliate on a given date, the license granted in Section 1.2 and vesting prior to such date by such Affiliate shall continue.

This is Section 1.2:

1.2 Subject to Section 2.2 and in consideration for the license granted in Section 1.1, You, on behalf of yourself and your Affiliates, (a) grant to each Licensee and its Subsidiaries that are Subsidiaries as of the Eligibility Date a royalty-free, worldwide, nonexclusive, non-transferable license under Your Patents for making, having made, using, importing, and Distributing any Linux System;

But there is a slight complication from the following section, I think:

2.2 You may make a "Limitation Election" to limit Your patents that are subject to the license granted herein, effective on a "Limitation Date" thirty (30) days after giving written notice to OIN. If a Limitation Election is made, (a) OIN Patents, Licensee Patents, and Your Patents shall thereafter be limited to those licensable during the Capture Period, provided that the Capture Period with respect to Licensee Patents shall end on the Limitation Date; (b) the license in Section 1.1 will become limited to products and services made and marketed by You prior to the Limitation Date; © the definition of Linux System shall have the meaning as defined on the Limitation Date; (d) the license in Section 1.2 shall not extend to any Person that becomes a Licensee after the Limitation Date; and (e) any licenses granted in Company Licensing Agreements or any amendment by OIN executed after the Limitation Date shall not extend to You or Your Subsidiaries.

I think this means that Novell or the new owners of its patents can opt for this "Limitation" that stops the clock on the patents and licensees that are covered. It is therefore very much in the interests of free software projects like the Document Foundation and KDE to get in now in case that option is taken. It will be interesting to see whether any one else decides to take out this insurance policy while they can.

One issue is what exactly the OIN licence covers. It talks about a "Linux system", and there is a list of the components that go to make this up. It's pretty comprehensive, including many things that are not really part of a "Linux system" so much as distros based on it. There's plenty of KDE stuff there, and there's OpenOffice – but not LibreOffice. Now, the differences between the two are currently quite slight, but it might be useful for the Document Foundation if the "Linux system" list were updated to include their variant too just to avoid any doubts.

As to the value of taking out this insurance policy, it's worth bearing in mind that this is really about one thing: making sure that Novell and the "consortium of technology companies organized by Microsoft Corporation" don't try anything funny with the patents they control. That's useful as far as it goes, but it doesn't address the two much bigger threats: those patent-wielding companies outside OIN and – above all – the patent trolls. So these moves are certainly sensible, but they achieve only so much.

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