LOT and OIN (DPAs) used by Microsoft to promote "Azure IP Advantage"

Summary: With many patent trolls out there (Microsoft's Intellectual Ventures alone has thousands of them) it's not at all clear how Microsoft can honestly claim to have reached a "truce"; OIN deals with issues which last manifested/publicly revealed themselves a decade ago (Microsoft suing directly, not by proxy)

PUBLISHED behind paywall yesterday (and then promoted in Twitter) was an article titled "More valuable to offer patent licences through LOT and OIN than do it ourselves, says Microsoft IP chief" (based on a Microsoft-friendly and trolls-funded publisher).

We can imagine the gist of it because we covered it based on the tweets while also expressing concerns about the new Deputy Director of the U.S. Patent and Trademark Office (USPTO). Even Dennis Crouch noted that "[s]he was also GC at Immersion Corp — by that point the company was really just enforcing its patents on haptic feedback game controllers." By "enforcing" he meant suing. They sue a lot of companies, having already earned themselves a reputation as "patent troll" (some news sites do call them that].

As we explained yesterday, Microsoft still relies on patent trolls to attack companies, enticing them into Microsoft's "protection racket" in Azure ("Azure IP Advantage" [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]). OIN members would be defenseless.

OIN has just published this press release about expanding the scope of "protection" (from other OIN members), "bringing the total number of protected packages to 2,873," it said.

Here are some key parts:

Open Invention Network (OIN), the largest patent non-aggression community in history, with more than 2,750 community members, announced today that it has increased its patent non-aggression coverage through an update to its definition of the Linux System. The expansion is part of Open Invention Network’s program to regularly revise its Linux System coverage to keep pace with innovation.

“Linux and open source software are thriving, and they continue to transform industries,” said Keith Bergelt, CEO of Open Invention Network. “This Linux System expansion enables OIN to keep pace with open source innovation, promoting patent non-aggression in the core. As open source grows, we will continue to protect Linux and adjacent technologies through strategic software package additions to the Linux System.”

The expansion includes 151 new packages, bringing the total number of protected packages to 2,873. “With this update to the Linux System definition, OIN continues with its well-established process of carefully maintaining a balance between stability and innovative core open source technology,” stated Mirko Boehm, OIN’s director for the Linux System definition. “While the majority of the new additions are widely used and found in most devices, the update includes a number of key open source innovations such as Kubernetes, Apache Cassandra and packages for Automotive Grade Linux.” The 5.5 percent growth over the 2017 coverage reflects OIN’s conservative and consensus-driven Linux System update process.

[...]

Funded by Google, IBM, NEC, Philips, Red Hat, Sony, SUSE and Toyota, OIN has more than 2,750 community members and owns more than 1,300 global patents and applications. The OIN patent license and member cross-licenses are available royalty-free to any party that joins the OIN community.

But OIN cannot defend from trolls. It cannot. At best it can discourage Microsoft from passing yet more patents to patent trolls, but those trolls can get patents from other avenues and OIN can, at best, try to outbid them. According to this press release, within a few days the Microsoft-funded patent troll Finjan can decide which Microsoft rival to sue next, having already sued many of them. What good would OIN membership have been? No good, no use.

A Section 101 challenge (invoking 35 U.S.C. ۤ 101, based on Alice/SCOTUS) has meanwhile been noted in relation to a notorious patent troll called Blackbird. It uses software patents for extortion (sometimes Microsoft's rivals) and the case needs to be escalated to the Federal Circuit (expensive) for invalidation that seems likely. To quote:

In the U.S. District Court for the District of Delaware, Plaintiff (Blackbird) sued Defendant (Niantic) alleging infringement of U.S. Patent No. 9,802,127. Niantic filed the present motion to dismiss the case for failure to state a claim under Rule 12(b)(6), on the basis that the asserted patent claims are invalid under 35 U.S.C. ۤ 101.

The Court followed the two-step approach set forth by Alice to evaluate the section 101 challenge, and ultimately found the claims satisfied step 1 (leaving step 2 unnecessary), and thus, the motion was denied.

The '127 patent is directed to a video game in which user determined location information (e.g. GPS, Google Maps, an entered address or the like) is acquired, and the determined location information of a physical location is mapped to a video game environment so that the user of the video game experiences objects from the user's physical location while playing the video game.

The bottom line is, as we've explained before (even yesterday), OIN does not do anything to eliminate software patents (it does not oppose these!) and it's almost pointless when patent trolls, including Microsoft's own, launch the litigation campaigns. Microsoft has a "clever plan", but Microsoft staff is not allowed to speak. ⬆