Linux gets open source patent boost

Posted on 11 Nov 2005 at 17:48

The Linux and open-source community is to benefit from royalty-free use of patents acquired by a new company called the Open Innovation Network (OIN).

Funded by IBM, Novell, Philips, Red Hat, and Sony, OIN will acquire patents and make them available for royalty-free use on the condition that the users do not press their patent claims against 'the Linux operating system or certain Linux-related applications'.

OIN's CEO Jerry Rosenthal, told us that this protected Linux area is both broad and set to grow. 'In the next 30 days we will list the thousands of modules we consider as part of the Linux ecosystem. That list will be constantly reviewed and expanded,' he said.

The OIN kicks off with a set of patents including business-to-business electronic commerce patents that were purchased from Commerce One by JGR, a subsidiary of Novell. Rosenthal declined to expand further on the patents currently within the OIN portfolio.

He said the OIN will initially focus on 'acquiring patents within the 'software space, we'll be looking at operating system patents and related areas.'

Currently, there are a number of initiatives to let Linux and related projects have free use of patent donations. IBM has made donations, and Sun's CDDL licence offers access to some of its patent portfolio under certain conditions. The OSDL, too, has announced a patent commons to allow royalty free use of a pool of patents under its auspices.

Rosenthal described the OIN initiative as 'complementary' to the other projects, but pointed out, in the case of patent donors such as IBM 'Those companies continue to own the patents in their portfolios. They just agree not to press them against Linux.'

The OIN on the other hand will buy patents outright. Although Rosenthal wouldn't detail quite what the OIN spending power is, he told us: 'All I can say is that we have more than adequate funding.'

He also added that those funding companies won't decide on what patents the OIN acquires. 'No the companies haven't put any restraints on the patents we'll be acquiring,' he said. 'We'll have discussions with various members of the board, but there aren't any restraints.'

The funding companies make an odd gang. IBM, the world's biggest patent holder, shouldn't strictly get on with the likes of Red Hat and Novell in terms of their point of view on patents - in particular software patents. Philips was one of the key proponents of software patents in Europe when framework legislation was being drawn up to legalise them. And in vehement opposition stood supporters of Linux, and Free and Open Source software.

Rosenthal's take is down to earth: 'The patent system has been with us for centuries, and we think that for the foreseeable future software patents will continue to be obtained. We're going to work within the system... We're taking a very pragmatic view,' he told us.

In essence, the OIN allows Linux to catch up on the proprietary space in terms of intellectual property. In the movement's formative years, its lower levels of usage and general use of quite ascetic licensing via the GNU GPL meant that there were few companies that could afford to develop a patent portfolio. And given that code was developed collaboratively, there were difficulties in establishing ownership. Add to that the fact that the licensing ensured patents were freely licensed, and there's also little financial incentive either.

Now, with Linux well and truly having come of age, there's a need to back up the technology with intellectual property rights. Rosenthal said he wants the OIN to establish a framework to allow the collaborative development of Linux and open source software to continue without the need for Linux projects to literally own a patent portfolio themselves, and not be at a disadvantage to those proprietary companies that do.