My November 2005 “On The Docket” column (available online at http://www.linux-mag.com/2005-01/docket.html
) discussed a patent commons for Linux
and open source. In that very same month, the Open Invention Network
was announced. I wasn’t prescient, nor was it happenstance that the wo events occurred simultaneously, as Red Hat was a founding member of OIN, along with IBM, Novell, Sony and Philips.
Yet even after a few months, the concept behind OIN still seems to be poorly understood. For example, just recently, David Kaefer of Microsoft stated, “However, some patent holding companies or consortia are proving efficient ways of amassing the set of rights vendors need to pursue development in an area. An interesting recent development is the launch of the Open Invention Network, whereby some from the open-source community have said ‘we might not like patents, but we are going to respect their existence and develop a model to buy the rights we need efficiently.’ It is a type of patent-holding company.” (See http://mobile.vnunet.com/itweek/analysis/2149111/patents-drive-progress?page
= 2.) Well, David, yes, OIN is a patent holding company, and no, it isn’t acquiring patents needed by the open source community.
Skinning the OIN
OIN was founded for two distinct purposes:
*To provide a network, or commons, around Linux and Linux-related applications; and
*To assure that the resulting large, patent-free “safe area” remains large, safe, and patent-free.
The OIN commons is created by having all participants in OIN, whether members or licensees, cross-license any owned patents that affect the Linux kernel, key components in any Linux distribution, and certain key Linux-related applications. The commons forms a large, safe area for development free of patent concerns.
The size of the safe area is critical to OIN’s future. If the commons is too narrow, it offers little protection. If it’s too broad, it makes it difficult for a company to join the commons for fear of undermining its proprietary technologies. OIN has tried to strike a balance between the two extremes by including applications the members believe to be valuable to the future of Linux and open source. The list of covered applications, which was scheduled to be published by OIN in February 2006, includes Apache, Eclipse, Evolution, Fedora Directory Server, Firefox, Gimp, GNOME, KDE, Mono, Mozilla, MySQL, Nautilus, OpenLDAP, Open Office, Perl, Postgresql, Python, Samba, SELinux, Sendmail, and Thunderbird, just to name a few. (The list cuts a wide technology swath, yet you may think the list is long enough. If so, all I can suggest is the list can still grow.)
To protect the safe area, OIN acquires patents that (likely) span well beyond the boundaries of Linux. Contrary to what’s been portrayed by some of the press, OIN is not acquiring “Linux patents.” (For instance, the patents acquired by OIN from CommerceOne don’t necessarily have anything to do with Linux.) Instead, OIN acquires valuable patents to build its portfolio, both to entice companies to join OIN and to deter companies from threatening either OIN or the Linux community.
Membership Has Its Privileges
Any party willing to license its “Linux” patents to OIN and the other OIN licensees receives a royalty-free license to fully utilize all OIN-owned patents. The monetary cost to join OIN is zero. Need coverage under the broad CommerceOne patents for web services? You can get a royalty-free license to those very patents merely by agreeing to license any patents in your portfolio that cover the Linux kernel and identified Linux-related applications. It makes no difference whether a number of your patents apply to Linux or none of them apply, you can still get the royalty-free license to the OIN patents.
On the other hand, any party that seeks to bring a patent infringement claim against the Linux kernel or the OIN-enumerated Linux-related applications must consider that OIN won’t take kindly to such claims. How, what, and when OIN takes action to protect the Linux technologies remains a mystery for the time being. For now, though, it is enough to simply take notice that OIN’s portfolio covers a broad range of technology with some very solid patents. In other words, the” bodyguard” can hold his own. No one in their right mind in the information technology industry wants to pick a patent fight. Through the efforts of OIN, that incentive has gotten smaller still.
So, OIN is not just another patent consortia looking to make money or to cover a specified field of technology. OIN is a dynamic part of that growing concept — an open source patent commons.
Mark H. Webbink is Deputy General Counsel at Red Hat, Inc.