Keith Bergelt
Open Invention Network
Keith Bergelt, CEO of Open Invention Network, reveals how the Linux non-aggression group has attracted more than 2,000 patent licensees

What is Open Invention Network?

Open Invention Network (OIN) is the largest patent non-aggression community in history and supports freedom of action in Linux as a key element of open source software.

OIN acquires patents and licences them royalty free to its community members which, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications in the core of Linux and other adjacent open source technology.

Open source software, and Linux in particular, has been one of the greatest sources of innovation in the last 25 years, since the birth of Linux. Open source developers have built excellent software solutions for business, education and personal use. Free and open source programs give companies, schools, governments and users more choices, ensuring that they are getting the best possible technology for their needs.

The OIN licence provides a licence, but also establishes a code of conduct or set of norms around how open source software community participants may use patents and how they may not. The culture and innovation modality of open source software, based on engagement and sharing, made it natural to build a collective patent defense solution to protect and enable innovation.

OIN passed 2,000 licensees recently—what does this mean for Linux?

The growth and prevalence of Linux is an irreversible trend as it is social in nature. It touches lives in multiple instances everyday—banking networks, search engines, cloud computing, telephony networks, smartphones and new types of computing devices, among many others. It is becoming a key technology in the automotive space and a key component of the growing blockchain advanced ledgering application environment.

As the use cases for Linux continue to grow, there has been an increased recognition by Linux developers, distributors and users that becoming an OIN licensee is a public way to support the freedom to innovate and operate within Linux and other key open source projects. As more and more entities—large and small—participate in the OIN community, the threat of patent risk in the core around which key applications are built diminishes.

Why are patent owners attracted to OIN?

The fundamental tenet of the OIN licence is appealing to companies entering new technology environments or markets where Linux is in widespread use. There is no analog in the history of technology or business to OIN.

When OIN was founded in 2005, farsighted organisations such as IBM, NEC, Philips, Red Hat, Sony and SUSE created a model and organisation that would provide a free licence to hundreds-of-millions of dollars worth of intellectual property, with the only stipulations being that licensees would participate in a cross licence and not litigate patents that were within the scope of core Linux, as defined by OIN’s ‘Linux System Definition’.

OIN is a pro-competitive platform where all licensees, including the founding member companies that provide capital to support OIN operations, sign on to the same licensing terms and the licence, without exception, is open to all who agree to patent non-aggression in the core of Linux.

In essence, the basic tenet that so many licensees have found appealing in the OIN licence is that where we cooperate/collaborate and build on each other’s ideas in core open source project technology, we will not sue each other.

Outside of the core in the application layer, companies may or may not choose to patent and develop differentiation, depending on strategy and disposition toward patenting.

All manner of entities have come to understand that by collectively sharing in the lower level of technology stack development, they are able to invest the majority of their resources in higher-level innovations. That is the collective power of open source. Organisations that share these beliefs, and the number continues to grow at a significant pace, find the OIN model attractive.

How often are Linux patents litigated and how much of a problem is it?

Software patents that address key areas of lower-stack technology are often broader than Linux and open source. OIN has worked to invest in strategic IP that is of value for a considerable time and is fundamental in nature. There have been a number of instances where licensees or organisations have come to us, under threat of litigation, which might have affected Linux developers, distributors and users.

In those instances we have looked to intervene in an appropriate manner to effect a desired result—patent freedom and appropriate use of patents outside the core of Linux and open source. As a matter of course, we have been successful in demonstrating the benefit of avoiding patent litigation.

In those instances where initial discussions failed to discourage litigation in the core of Linux, we have forward deployed some of our strategic IP to a licensee, in order to remove the aggressor’s IP advantage.

In this very select number of cases, patent aggressors and OIN licensees have settled shortly after OIN’s involvement and the result has been low-cost licence agreements that have had little impact on total cost of ownership of open source technology utilisation. Through this process, OIN worked to preserve vendor, carrier, and developer choice.

With the mix of licensees that OIN has, are you confident that Linux will soon be free of patent litigation, or is that unrealistic because it has too many possible applications as a technology?

There are a number of passionate open source advocates that would like to see software patents be rendered invalid. There are others that believe strongly in the rights conveyed by a patent and the positive role of patents in innovation. Our goal is to ensure that all Linux developers, distributors and users are able to use and innovate in Linux and through the collaborative modality that all open source software projects embody. In short, we look to ensure a fair playing field that lets a technology, be it open or proprietary, win or lose on its merits in the market, not due to IP litigation in the core on which so many technology companies have come to rely.

Patents have been and will remain the law in most of the world. We are here to work within the patent system to ensure that Linux is not impaired through IP aggression in the core and thereby preserve freedom to operate for OSS adherents.

Do you think the defensive patent aggregation model can make a difference in other technologies, perhaps green tech?

There is no analog in history to OIN. However, with the success of OIN, we are beginning to field an increasing number of inquiries from non-IT and telecommunications-related companies in fields where collaborative development is coming to be seen as a more cost-effective and efficient path to higher level innovation than can be attained through ‘siloed’ invention.

So we expect the success of OIN to spawn complementary approaches to patent non-aggression in core technologies where company participants are pragmatic, acknowledge their interdependencies with competitors and recognise that one plus one plus one no longer equals three, but instead equals five or 10 or 20 in terms of creative output—when we bring smart people around technology challenges and leverage the resulting distilled collective intelligence.

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