09.23.18

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Open Invention Network is Rendered Obsolete in the Wake of Alice and It’s Not Even Useful in Combating Microsoft’s Patent Trolls

Posted in America, IBM, Microsoft, OSI, Patents at 2:13 am by Dr. Roy Schestowitz

Microsoft and trolls

Summary: Changes at the US Patent and Trademark Office (USPTO) and in US courts’ outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent ‘protection’ from these trolls)

THE situation at the USPTO has changed in recent years. AIA introduced the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) — together with 35 U.S.C. § 101 as relevant law — helped eliminate a lot of software patents which had been granted for a couple of decades.

These changes posed a problem not just for patent trolls and bullies but also law firms and bodies whose sole purpose was to ‘protect’ from these patent trolls and bullies. Some were rendered moot or redundant. See the demise of RPX for example. Well, what about Open Invention Network (OIN)? The terrain is changing and OIN is totally failing to adapt. It’s still stuck in the past.

OIN’s Jaime Siegel and Mirko Boehm reappeared several days ago. Usually its their CEO who appears in the media.

OIN has such a misguided and pointless strategy these days that even the patent trolls’ proponents can support these people. Watchtroll entertains Jaime Siegel, OIN’s Global Director of Licensing (yes, licensing!). It’s a large “cross-license agreement” — one that Oracle did not even seem to obey when it sued Google over Android/Java. Abolish software patents instead, OIN, don’t do this:

As Jaime Siegel, OIN’s Global Director of Licensing, notes, OIN is able to grant free membership to companies joining the consortium thanks to the efforts of eight full-funding member companies which have each funded $20 million to support OIN’s operations through an endowment. These companies include the first six companies to form OIN: Sony, Phillips, IBM, Red Hat, NEC and SUSE; joining those companies are Google and Toyota. OIN’s board consists of representatives from each of these full funding members. Every new member of OIN signs the same licensing agreement as the full-funding members, giving all members in the organization equal standing in terms of the cross-license agreement.

[...]

Siegel said that the only kind of company that wouldn’t benefit from membership in OIN would be a company which was building a patent assertion program to get companies to license Linux core patents. Despite the massive expansion of Linux-based systems across industries, however, Siegel said that there has been virtually no patent litigation around the Linux core. “While OIN won’t take all the credit for it, I think OIN has been a big factor as to why there’s been so little litigation around the Linux core,” Siegel said. “While we are a pro-patent organization, we’re very aggressive about going after assets that are threats to Linux and opposing activities that are targeted against the Linux core.”

“OIN’s Members include Google, IBM, NEC, Philips, Red Hat, Sony” (and others), according to Wikipedia. Sony is one of “the first six companies to form OIN,” according to the above interview. Days ago Sony’s patents made some headlines [1, 2] because Sony is still a patent maximalist, hardly a reformer in any sense of the word. IBM is a major patents-wielding bully, as well, and OIN’s first CEO came from IBM.

OIN’s Mirko Boehm wrote about FRAND in the European Union on the very same day the above got published. Here is what he said:

As part of the research project on “The Interaction between Open Source Software and FRAND licensing in Standardisation”, a workshop was organised by the European Commission, Joint Research Centre (JRC) in collaboration with Directorate General Communications Networks, Content and Technology (CONNECT) to present and discuss the intermediate results to date. The workshop took place in Brussels on September 18, 2018. I presented a set of observations from the research on the case studies performed as part of the project that are outlined below. Other speakers where Catharina Maracke on the issue of legal compliance between Open Source and FRAND licenses, Bruce Perens on “Community Dynamics in Open Source”, and Andy Updegrove on “Dynamics in Standardisation”.

You may ask what the relevance of this debate is for the wider Free and Open Source Software community. The obvious answer is that to distribute software “without restriction”, the user needs all the usage rights associated with the program. While most FOSS contributors assume that this is naturally the central motivation for anybody to contribute in the first place, there is a long history of attempts to maintain some sort of exclusive control over a piece of FOSS code, possibly using other rights than copyright.

Mirko Boehm’s (auto)biography says that he is “Director, Linux System Definition, Open Invention Network.” With people like Andy Updegrove and Bruce Perens involved (in the above) it looks a lot more legitimate than IAM's disgraced event.

Anyway, if the goal is to protect GNU/Linux from patents (rather than protecting software patents from GNU/Linux advocates, as Perens once put it), then OIN must evolve. Microsoft is operating through trolls while offering (selling) ‘protection’ from these [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]. One example is Microsoft’s patent troll Finjan, which days ago issued a widely-spread and paid-for press release [1, 2, 3] about its laughable software patents that it uses to blackmail Microsoft’s rivals. This spoke of the Federal Circuit‘s stance on the ‘408 patent:

“Finjan is gratified to have the Federal Circuit’s decision affirming the USPTO’s Patent Trial and Appeal Board’s decision rejecting Palo Alto Networks’ challenges to Finjan’s ‘408 Patent,” stated Julie Mar-Spinola, CIPO and VP, Legal Operations for Finjan. “While this allowed Palo Alto Networks to delay Finjan’s day in court for nearly four years, we believe we are due and will seek past and accrued damages for that period until resolution, which is not insignificant.”

There have been similar Federal Circuit challenges to patents from Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls. It’s another Microsoft proxy which goes after Microsoft’s rivals with frivolous lawsuits and threats thereof. Where is OIN in all this? Not interested? Apathetic? Therein lie some of the biggest problems.

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