Doubts Persist as Open Invention Network Adds to Patent Pool

A network of companies collecting patents and pledging them to defend the Linux operating system and environment recently acquired more patents, but doubts linger as to the effectiveness of the effort and corporate support for it.

The Open Invention Network, an entity formed last year with support from IBM, Novell (Nasdaq: NOVL), Philips, Red Hat and Sony, unveiled a new set of “e-commerce and Internet-related patents” that will be available to the members of the network and the Linux/open source community, or any organization or individual that agrees not to assert their patents against Linux.

However, OIN’s membership remains limited to its founding five companies, and there is no shortage of skepticism when it comes to the effectiveness of the organization.

“To the best of my knowledge, the OIN hasn’t changed a thing with regard to the fundamental user issues of protection from lawsuits and indemnity protection,” Gartner Vice President George Weiss told LinuxInsider.

Patent Progress

Nevertheless, OIN is making progress in its acquisition of patents, and has had discussions with dozens of companies that would like to become licensees, OIN Chief Executive Officer Jerry Rosenthal told LinuxInsider.

“We are pleased with the progress of gaining more licensees,” he said. “We expect as people become more aware of who we are, there will continue to be a steady stream of licensees who will help grow the Linux environment by agreeing not to assert their patents against Linux in return for a royalty-free license to OIN’s patents.”

OIN currently holds 12 patents issued in the U.S., Rosenthal reported, with “many applications” still being processed by the U.S. Patent and Trademark Office and other patent agencies around the world.

“We are also in the process of negotiating for the purchase of additional patents,” he said.

Low Profile

Despite the new e-commerce patent and others acquired from Instantiations, OIN’s strategy has been called into question by a number of industry insiders.

Gartner’s Weiss, who called for articulation of OIN’s financial stability and business model when the network launched last year, criticized the company’s effort for falling short of actually protecting Linux and its users. He indicated the collaborative environment of OIN is likely to free up the flow of technology by reducing the fear of Linux patent claims and lawsuits. However, he stressed that OIN does not address the issue of indemnification, which is a vendor’s legal responsibility to defend its users in the case of a patent infringement suit.

Weiss suggested OIN might be more effective if combined with the similar Patent Commons project of the Open Source Development Labs (OSDL). OIN still has a very low profile in the industry, he noted.

“I haven’t heard from any client about their knowledge of OIN nor of their interest,” he said. “That appears to mean that OIN is either not understood or has not done a good job of making itself known and understood.”

Positive Protection

When asked to respond to criticisms about OIN, including the contention the company is aimed at protecting its members more than Linux, CEO Rosenthal said the company had not heard about them.

“It is difficult to respond to that question since we are unaware of any criticism of what we are working to accomplish — protecting the Linux environment by acquiring patents for the protection and defense of that environment, licensing those patents on a royalty-free basis, and asking licensees not to assert their own patents against the Linux environment.”

Match With Microsoft

Florian Mueller, a software patent opponent who was successful in the European fight over software patents last year, said he strongly doubts the OIN strategy is about acquiring patents that Linux developers can actually use. He also highlighted the fact that the biggest patent threat against Linux would likely come from Microsoft, which is probably not going to join OIN.

“They try to build up a retaliatory arsenal that they hope will discourage Microsoft from using its own patents or the patents of such an entity as Intellectual Ventures against Linux,” Mueller explained. “If that’s what OIN aims for, it needs far more patents and may be adversely affected by the (U.S.) Supreme Court’s ruling in the MercExchange vs. eBay case, which precludes an organization like the OIN from obtaining an injunction against a vendor like Microsoft.”

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