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Framework for Legalising Software Patents in Europe Falls Over, So Why Does Canonical Join the OIN?

Posted in Europe, IBM, Law, Microsoft, Patents, Ubuntu at 3:57 pm by Dr. Roy Schestowitz

Berlin wall

Summary: Canonical, the EU-based company which produces the “Ubuntu” GNU/Linux distribution, joins the Open Invention Network just as the “EU patent” seemingly collapses

A few weeks ago we showed that the unified patent litigation system (UPLS) was failing to materialise. It’s one of those back doors to software patents admission all across Europe. A new report from IAM hammers another nail into this coffin, but vigilance remains necessary because they keep renaming and/or dressing up this same plan which would help lawyers, not science.

A single EU patent looks dead in the water as member states seek alternatives

Attempts to create a single EU patent could be heading to yet another failure, according to Margot Fröhlinger, Director of Knowledge Economy inside the Internal Markets DG of the European Commission. Speaking today at the IP Business Congress in Munich, Fröhlinger, who is closely involved in the negotiations surrounding the patent, as well as a single litigation system in the EU, told delegates that the project “is not in the best shape”. Proposals about languages and translations are due to be presented to the Council of Ministers next week. There is, however, “little chance that they will fly,” she said.

Oddly enough, the UK-based Canonical has just joined the US-based Maginot Line as a member, supposedly for protection against racketeering [1, 2, 3, 4, 5, 6, 7] from Microsoft, MPEG-LA [1, 2], and other aggressors/trolls who will potentially use software patents. The official announcement (appended below in full) says:

Open Invention Network (OIN) today announced that Canonical, the company behind Ubuntu, has become its first Associate Member. Open Invention Network developed the Associate Member program to further strengthen the Linux community and empower open source leaders to ensure ongoing freedom of action for Linux as it relates to intellectual property (IP) rights..

It is not entirely clear how the OIN will help Canonical. It didn’t exactly save the EU-based TomTom, which paid Microsoft after it got sued. Florian Müller got in touch with us to say that the “Open Invention Network, a patent holding firm owned by six companies (IBM, Sony, NEC, Philips, Red Hat, Novell) has announced a new “Associate Member” program and the fact that Canonical (the Ubuntu company) becomes the first Associate Member (previously, Canonical was a mere “licensee”).” For those who do not know yet, Müller is an OIN sceptic. The same goes for the FFII and for Techrights, unlike Groklaw for example.

“The Canonical announcement once again shows the absolutely unacceptable degree of intransparency with which the Open Invention Network operates,” Müller explains. “Both the press release and the OIN’s website fail to specify what exactly the rights and obligations of OIN Associate Members — as compared to mere licensees — are. Also, there’s no information concerning the criteria according to which a company is eligible to become an OIN Associate Member. Canonical is known for being a strategic partner of IBM, and since IBM is the most influential force behind the OIN, that’s probably the reason why its membership status was upgraded.

“Canonical is known for being a strategic partner of IBM, and since IBM is the most influential force behind the OIN, that’s probably the reason why its membership status was upgraded.”
      –Florian Müller
“The OIN can’t claim to pursue the protection of the Linux ecosystem as long as its non-assertion commitment relates only to an arbitrary definition of what the OIN calls ‘the Linux System’, which includes some but not all of the major applications that are usually shipped with major Linux distributions. The OIN reserves the right to redefine ‘the Linux System’ and therefore the scope of its license agreement anytime at its sole discretion, which is intransparent and arbitrary and raises serious questions. It seems to me that the OIN is basically a strategic patent troll, a non-practicing entity owned by a small group of companies that can use it for its purposes against their competitors whenever they elect to do so, and the protection of Linux is just a pretext.

“Some of the OIN’s backers have a terrible background concerning software patents, such as IBM, and I have had to lobby against most of those companies in the past because they tried to convince lawmakers in Europe to strengthen the legal position of software patents over here.

“I’m not aware of even one case in which the OIN’s patent pool served the purpose of protecting Linux. Organizations close to the OIN try to suggest that it was the case, but there’s absolutely no evidence because otherwise there would have had to be an announcement that a company trying to assert patents against Linux or other open source software backed off and instead obtained a license to the OIN’s patents. Not even one such case is known. Instead, patent infringements by companies building products based on Linux happen all the time, and even very strong and competent organizations such as Amazon and HTC feel forced to pay patent royalties for their use of Linux. If the OIN were as useful as its backers claim, those companies, too, could have chosen to be protected by the OIN.”

We omit the remainder of Müller’s mail because it contains promotion of other schemes that we wish not to endorse. As Carlo Piana put it last month, “the *only* solution is abolition NOW.”

We patiently wait for the Bilski decision to come. Here is what Patently-O has to say about it:

UPDATE: No decision today. The court will release opinions on Thursday (June 24) and again next Monday.

It will definitely be out by the end of the month [1, 2, 3, 4, 5, 6, 7], so either this week or next week we will know what milestone was achieved.

Open Invention Network Announces Associate Member Program and Recruits Canonical As Its First Associate Member

New Associate Member Program Strengthens Linux Community and Deepens OIN Impact in Support of Linux’s Growth and Migration into Key Emerging Markets

Durham, NC (June 22, 2010) – Open Invention Network (OIN) today announced that Canonical, the company behind Ubuntu, has become its first Associate Member. Open Invention Network developed the Associate Member program to further strengthen the Linux community and empower open source leaders to ensure ongoing freedom of action for Linux as it relates to intellectual property (IP) rights.

“We view Open Invention Network as one of the key methods through which open source leaders and innovators can deter patent aggression,”
      –Canonical CEO Jane Silber
OIN Associate Members, such as Canonical, demonstrate support and commitment to limiting the effects of patent disputes in Linux. Canonical’s activities and those of all companies seeking to adopt and use Linux will be facilitated as OIN works closely with Canonical and other companies that are supporting Linux’s growth and expansion. Through the support of its founding members including IBM, NEC, Novell, Philips, Red Hat and Sony, OIN has amassed a broad portfolio of patents, including patents held by nominees on its behalf.

“Canonical has shown great leadership with Ubuntu and it is an important participant in the overall open source and Linux ecosystem. By transitioning its relationship with OIN from Licensee and becoming OIN’s first Associate Member, Canonical is once again demonstrating its leadership and commitment to Linux,” said Keith Bergelt, CEO of Open Invention Network. “We are extremely pleased to launch our Associate Member program and have Canonical join as our first member.”

“We view Open Invention Network as one of the key methods through which open source leaders and innovators can deter patent aggression,” said Jane Silber, CEO of Canonical. “We are committed to freedom of action in open source, and have noted OIN’s efforts to actively defend and enable the Linux ecosystem. By becoming an OIN Associate Member, we are supporting the broad OIN mission and its commitment to enable and protect Linux’s advancement.”

About OIN Membership & Licensee Opportunities
Open Invention Network has three levels of participation, each of which helps to promote open source as a modality for invention and ensure ongoing freedom of action for Linux community members:

• Founding Members – Open Invention Network comprises six forward-looking organizations that originally created OIN with a mission of enabling and protecting Linux as it relates to IP rights. OIN’s Founding Members include IBM, NEC, Novell, Philips, Red Hat and Sony.

• Associate Members – Associate Members are recruited from Linux-related companies, including those that are leaders in advancing Linux’s migration into emerging growth markets. Associate Members make a commitment to the Linux Community by virtue of their commitments to and membership in OIN and help to ensure that patent issues do not impair Linux’s growth.

• Licensees – Any company or organization that agrees to refrain from using its intellectual property against the Linux System may become an OIN licensee. Licensees benefit from royalty-free access to a valuable and growing portfolio of strategic patents, as well as from ongoing communication with OIN concerning Linux-related patent issues. In so doing, licensees facilitate their access to OIN resources such as Linux Defenders, which is designed to address patent issues with the potential to impact Linux. OIN licensees, be they founding members, associate members or licensees, contribute to an ever expanding community of companies that share a common goal of ensuring freedom of action in and across the Linux ecosystem. Through their unified commitment to Linux, they limit the negative effect of patent-based challenges mounted by companies antagonistic to Linux and open source innovation.


About Canonical

Canonical provides engineering, online and professional services to Ubuntu partners and customers worldwide. As the company behind the Ubuntu project, Canonical is committed to the production and support of Ubuntu – an ever-popular and fast-growing open-source operating system. It aims to ensure that Ubuntu is available to every organisation and individual on servers, desktops, laptops and netbooks.

Canonical partners with computer hardware manufacturers to certify Ubuntu, provides migration, deployment, support and training services to businesses, and offers online services direct to end users. Canonical also builds and maintains collaborative, open-source development tools to ensure that organisations and individuals can participate fully in innovations within the open-source community. For more information, visit www.canonical.com.

About Open Invention Network®

Open Invention Network is a collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux. It does this by acquiring and licensing patents, influencing behaviors and policy and protecting the integrity of the ecosystem through strategic programs such as Linux Defenders. OIN enables the growth and continuation of open source software by fostering a healthy Linux ecosystem of investors, vendors, developers and users.

Open Invention Network has considerable industry backing. It was launched in 2005 by IBM, NEC, Novell, Philips, Red Hat and Sony. OIN has received supplemental financial support from Canonical. For more information, visit www.openinventionnetwork.com.


Open Invention Network, the Open Invention Network logo, Linux Defenders, Linux Defenders 911 and the Linux Defenders 911 logo are registered trademarks or the property of Open Invention Network, LLC. All other names and brand marks are the property of their respective holders.

Media-Only Contact:

For Open Invention Network:
Ed Schauweker
Ketchum for Open Invention Network

For Canonical:
Joe Eckert
Baker Communications Group

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