Shelter for Linux in the Software Patent Storm

Patents, patents, patents. Such a to-do about software patents!

The news this week has focused on little else, thanks in large part, of course, to Google’s much-discussed purchase of Motorola Mobility.

It’s fairly widely agreed that patents were the motivating factor behind that purchase — not at all surprising, given the virtual lawsuit-fest the mobile world has become. Even the relatively open and free, like Android, need a patent war chest to protect them, it seems.

And what of the rest of the Linux world? Well, for that, thank goodness there’s the Open Invention Network (OIN).

Cisco and Twitter Sign On

Yes, for those who aren’t already familiar with it, the OIN was formed back in 2005 to protect and promote the Linux ecosystem by making sure that a broad portfolio of important patents are “openly shared in a collaborative environment,” as the group puts it.

In a nutshell, patents owned by the OIN are available royalty-free to any company that agrees not to assert its patents against what OIN calls “the Linux System.” Awesome patents in exchange for a no-lawsuit promise, in other words.

Sound like a good deal? You bet it does, and both Cisco and Twitter seem to agree. It was the recent addition of those two companies to the OIN’s roster of more than 360, in fact, that’s had tongues wagging down at the Linux blogosphere’s Punchy Penguin Saloon.

No fan of software patents herself, Linux Girl whipped out her Quick Quotes Quill and started taking notes.

‘Weapons of Mass Destruction’

“Congrats to Cisco and Twitter for doing the sensible thing,” offered consultant and Slashdot blogger Gerhard Mack. “Now they need to continue to pressure Washington to fix the broken system that requires organizations like OIN to exist.”

Indeed, “the USPTO has allowed US businesses to descend into a depressing state of paranoia and mindless violence,” agreed blogger Robert Pogson. “The USPTO has issued thousands of worthless patents that can do $millions of damages per patent in legal fees and blocking commerce.”

Though originally intended “to promote science and technology by providing temporary monopolies to inventors, often solitary individuals,” patents have since “warped into weapons of mass destruction in the hands of corporations,” Pogson added.

‘More Evil Than Double Jeopardy’

Lawmakers, courts and the patent office, advised Pogson, need to take the following steps:

  • “disallow patents for corporations over a certain size, after the first million units of a product under patent protection have shipped, and for non-practicing organizations;
  • refuse to issue patents for non-patentable ideas;
  • require patents to be licensed under ‘reasonable and non-discriminatory’ terms to prevent abuse; and
  • disallow patents for software under any circumstances — patents and copyright for software does more evil than double jeopardy.”

The OIN, meanwhile, is “just another patent cartel for FLOSS like the ones M$ and its ‘partners’ use to defend/attack in patent litigation,” Pogson opined.

“Should not business return to the business of supplying goods and services for profit instead of commercial warfare?” he asked. “It clearly is unconstitutional that current US patent law permits a business to refuse to license a patent and at the same time not to implement the patent in any product.”

‘Patent Plaintiffs Cannot Win’

Patents are not always a winning proposition for their owners, either, suggested Chris Travers, a Slashdot blogger who works on the LedgerSMB project.

“This shows a major reason why patent plaintiffs cannot win,” Travers told Linux Girl.

“The end result for a patent-holder which aggressively enforces a patent claim like this ends up eventually with massive damage to his/her patent portfolio, large legal costs and loss of image,” Travers explained. “Now, with a project like Linux, we are seeing collective defense.”

‘They Can Treat the Code Like BSD’

Slashdot blogger hairyfeet saw it differently.

“It is no wonder all these embedded and SaaS groups are using Linux and joining OIN — they can have their cake and eat it too,” he said.

Specifically, “they get all the code for free, all those patents to CYA for a trivial amount of money, and they can treat the code just like BSD thanks to TiVo,” he explained. “Hell, if I was working on an embedded device I’d just use Linux and eFuses — I mean, why not? It isn’t like anyone can do a thing about it as long as I hand them the code, right?”

Ultimately, though, hairyfeet sees private ownership in Linux’s future.

‘The MSFT of the Mobile World’

“I truly believe the future of Linux will be corporate ownership, most likely by Google,” he suggested. “They have the muscle that if they fork the kernel away from Linus, everyone will follow Google. This will give Google the keys to the kingdom and could make them the MSFT of the mobile world.”

After that, “it would be foolish for them NOT to lock it down,” hairyfeet asserted. “After all, if you can upgrade it without them, how will they get you to buy the latest and greatest? How will they keep you from taking Google search and services and all that yummy data-mining and ad revenue away from them?

“Simple answer: they can’t, as that is kinda the point of FOSS and GPLv3, to keep companies from taking your rights away,” hairyfeet concluded.

‘You Ain’t Seen Nothin Yet’

Not everyone, however, was quite so sure.

“I notice Google is a licensee, and with Google’s acquisition of Motorola Mobility and Moto’s 17,000 current patents and an additional 7,500 pending patents in the pipeline, ‘you ain’t seen nothin’ yet!'” observed Barbara Hudson, a blogger on Slashdot who goes by “Tom” on the site.

“With the Moto acquisition, and assuming Motorola’s patents get added to the pool, the OIN suddenly becomes THE place to be — especially since Motorola by itself had enough patents in the mobile field to be able to stand against both Apple and Microsoft,” Hudson explained.

‘Critical Mass at a Critical Time’

“It’s all about critical mass at a critical time, and OIN seems to have hit the numbers just right, in large part due to the patent trolls themselves forcing businesses to find a solution that doesn’t involve being victims of extortion,” Hudson added.

“Can the world get any crazier? Possibly,” she suggested. “What if Nokia ends up having to join just to survive a bit longer? Could that become a sort of poison pill preventing a Microsoft buyout of Nokia for pennies on the dollar when it finally goes belly-up?

“The other question is, how long until companies do the logical thing and band together for comprehensive patent defensive pooling over all their activities and products, not just linux?” Hudson mused. “After all, money not spent on suing each other is money that can make the difference between a profit or loss, and fewer legal hassles means more resources to devote to actually building their core businesses rather than trying to win big in the patent troll lottery.”

Katherine Noyes has been writing from behind Linux Girl's cape since late 2007, but she knows how to be a reporter in real life, too. She's particularly interested in space, science, open source software and geeky things in general. You can also find her on Twitter.

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