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Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)

posted by Roy Schestowitz on Mar 16, 2024,
updated Mar 17, 2024

Keith Bergelt

AS already noted this morning in a quick teaser, today we deal with OIN because the silence at OIN has been deafening for about a year if not much longer (maybe 3 years; their press releases haven't been visible in years). You always expect firms to show off what they do, but what about OIN? We never hear anything from or about it unless we dig very deep. They have a CMO (M for marketing), but hardly any marketing.

So what does OIN do anyway? Issue press releases [1, 2] like this latest one?

I sought clarity on this matter and we checked a number of essential points, pertaining to recent developments when it comes to Microsoft, Linux, and software patents.

Before publishing this article we've attempted to give OIN an opportunity to explain. Keith Bergelt has not replied to queries on this very important matter. Is there peace or a settlement? As in acceptance Microsoft will be paid for patents covering "Linux"... but not "too much"...?

Bergelt knows me very well. We talked on the phone several times in the past (long calls) and exchanged words quite a lot over E-mail. It was about a decade ago when OIN seemed very active and was very visible. Has it chosen to keep low key and maintain a low profile since then? If so, why?

A long time ago Bergelt shed some light on what patents Microsoft was asserting against "Linux" (kernel and beyond is what he meant by that term). And over the telephone he mentioned that the patent royalties were about FAT.

What has happened since then? What about exFAT? The patents aren't expired yet and they're an example of the U.S. Patent and Trademark Office (USPTO) issuing software patents in spite of 35 U.S.C. § 101/Alice (SCOTUS) just to make more money.

Over the past decade I've trusted OIN less and less each year. Because like the Linux Foundation, over time they drifted more and more away from Linux and the Tux logo, instead becoming closer to Microsoft and always prioritising one thing: money! OIN is "Big Business" now. Like the LOT Network, it aims for LOTS of money and there are even staff overlaps, as we demonstrated here in the past.

OIN brought Microsoft onboard and helps relay the "loves Linux" lie. To be clear, OIN is not against software patents. It came from companies that serve themselves, not Linux, and the first CEO came from a top lobbyist for software patents, which also notoriously hoard loads of patents in the US and still goes after companies, essentially extorting them using such patents. They extol the virtues of patents covering algorithms while belittling if not ridiculing their critics, i.e. most software developers.

Why is Red Hat shilling Microsoft every other day in its official blog?

Microsoft is not our friend, it was trying to make billions of dollars per year by blackmailing OEMs, including Android OEMs, using software patents, sometimes settling on them preloading (i.e. bundling) Microsoft apps (spyware) in exchange for legal "peace". We last covered it 3 years ago in this long series.

In a more recent example, Microsoft wanted to shove exFAT into the core of Linux. Theodore Tso, still stalked and abused (often defamed) by Microsofters, objected to this, citing patent aggression by Microsoft.

What ever happened with that?

That's the subject we explore today.

This very old page says: "The Extended File Allocation Table (exFAT) File System Specification was developed by Microsoft, and is protected by multiple patents, including US Patent Number 2009/0164440 A1. All implementations of the exFAT File System, included [sic. including] those based on open source code (such as Linux, Android, FATfsor [sic] other), are subject to royalty payments to Microsoft. This means that if you develop and ship a product that incorporates any functionality covered by the exFAT patents, regardless of where the code comes from, you are obligated to pay royalties in advance of shipment in order to comply with Microsoft’s licensing terms."

It says "Embedded Access is a partner of Microsoft and is authorized to collect exFAT royalties on their behalf without requiring you to sign a Microsoft agreement or to make payments directly to Microsoft. We offer a simple and economical way to keep your products legal. Contact sales@embedded-access.com for more details."

You don't hear about this in the media, do you? They sell exFAT licences as "a partner of Microsoft" (quoting the above).

Some deal, eh?

An associate explains that businesses should be using EXT2 instead for technical reasons as well, but there seems to be an ideology that they must find expensive options instead.

In IRC, psydruid said that "the issue also lies with devices that "must" work with technically obsolete Microsoft operating systems, but they could at least add ext2/ext4 as an additional option for storage."

If you search for "ExFAT" in the USPTO's 'site' (more like a web app, JavaScript chaos), the results cover 18+ pages!

As a followup to the ExFAT topic, we have taken another look at the time Microsoft promised to turn the patents over to OIN (but as far as we know never actually did). Was this an empty promise to fool the chumps? As we need to check if that happened, and nobody knows except the OIN, we first checked OIN's site because the Wikipedia page does not provide evidence of any transfer to OIN aside from a vague promise from Microsoft to do so at some unspecified future date. See "606": "This project aims to provide a full-featured exFAT file system implementation for Unix-like systems. It consists of a FUSE module (fuse-exfat) and a set of utilities (exfat-utils)."

"Not Found", the link says, and the corresponding Git repo says GPL2.0, not 3.0 (the latter deals with patents).

We've cloned the repo... and...

$ git log | grep -i patent | wc -l
0

Their COPYING file is merely a paste of the GPL v2. That does not cover software patents.

So if the patents are protected by the OIN, the world has not been notified.

searching Google for site:openinventionnetwork.com exfat brings nothing.

So we waited, checked again, and ended up reaching out for information before writing on this issue. I asked the CEO of OIN, who has extensive history corresponding with me and talking with me. He got my message, it did not bounce.

So what has taken this long? Can he not give me a reassuring answer? I'm all ears, in case he wishes to correct me some time later.

To be clear, I used to talk to OIN back when it still seemed to care about Linux (as did the Linux Foundation), but as an associate put it: "The OIN seem to have become co-opted over the years as they have become increasingly pro- software patent and increasingly blind to their ineffectuality against NPEs."

That's another thing. They ended up settling with patent trolls, leaving their patents in tact (to fight against other entities, not GNOME).

Checking their US portfolio, an associate went through all four pages and nothing stands out. Nothing about exFAT. I decided to double-check, as it's a short list of only 40 patents, even less:

OIN Just 36?

We're led to just guess the main exFAT patent might expire in 2027, but should it not be challenged in the Patent Trial and Appeal Board (PTAB) using an inter partes review (IPR)?

Here, like with OOXML, as per the above URL, Microsoft charges money (derived from exFAT for licensing) and Linux is being used to perpetuate this racket. In our view, that is not acceptable.

To quote OIN's description of itself from this past week's press release:

About Open Invention Network

Open Invention Network (OIN) is the largest patent non-aggression community in history and supports freedom of action in Linux as a key element of open source software (OSS). Patent non-aggression in core technologies is a cultural norm within OSS. The litmus test for authentic behavior in the OSS community includes OIN membership. Funded by Google, IBM/Red Hat, NEC, Philips, Sony, SUSE, and Toyota, OIN has more than 3,800 community members. The OIN patent license and member cross-licenses are available royalty-free to any party that joins the OIN community.

So they say nothing at all about software patents. It's just some conglomerate for cross-licensing and you need to join this 'racket' to qualify. That's not a solution, except if you're IBM or one of the other large companies.

We need real solutions. We need to protect Free software. OIN is not the solution and it probably never was.

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