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.
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.
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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.”
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.
“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.”