Contents

• Summary
• Patent Contributions and Non-Assertion: CA, IBM, Nokia, Novell, OIN, RedHat, Sun
  • Computer Associates
  • IBM
  • Nokia
  • Novell
  • Open Invention Network (OIN)
  • Red Hat
  • Sun Microsystems
• From the OSDL Announcement
• Press and Commentary
• LinuxWorld: Webbink Keynote
• Principal References

On the second day of the LinuxWorld Conference & Expo in San Francisco, Open Source Development Labs CEO Stuart Cohen announced a new OSDL Patent Commons Project "designed to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry."

Several leading companies (e.g., Computer Associates, IBM, Nokia, Novell, RedHat, Sun Microsystems) have already contributed patents and pledged patented technology to the "open source community," attempting to create a framework for patent-free software development. To date, no formal legal entity has been designated to coordinate the patent pledges, contributions, and legal declarations that would provide the structure for a patent pool.

Plans for the OSDL Patent Commons Project call for the creation of a "library and database that aggregates patent pledges made by companies. The library will also aggregate other legal solutions, such as indemnification programs offered by vendors of open source software. It will include a collection of software patent licenses and software patents (issued and pending) held for the benefit of the open source community."

Building upon patent contributions from several open source vendors, OSDL's proposal for the Patent Commons Project begins to give shape to an idea long dreamed about by open source advocates: the idea that "free software programmers [and others] could create a patent pool to support cross-licensing for free software." In March 2000 (and probably earlier), Richard M. Stallman envisioned the creation of such a patent pool:

It doesn't have to be just free software developers; other people who want to protect themselves could join such a pool as well. The problem is in getting it started, because the bigger the pool is, the more beneficial it is to join. So the smaller it is, the less reason there is to join. Nobody has ever been able to get one started... Persuading companies who have patents to join this pool is apparently hard because nobody has ever done it... Nobody has ever formally started a patent pool. I guess nobody has seen it was useful to go through that work without having people who were going to join it..."

OSDL's proposal addresses a well-known problem: software patent enforcement is largely incompatible with the open source software business model (open source software development, open source software licensing, open source software distribution). The Open Source Definition maintained by OSI stipulates that a compliant license "shall not require a royalty or other fee," that "the license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software," and that the "rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties."

Similarly, as explained in the Preamble to the The GNU General Public License (GPL) Version 2: "any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."

The OSDL Patent Commons proposition is therefore fairly simple: "By contributing patents to the OSDL patent commons project, patent holders can be assured that the right to enforce the patents is administered by an organization dedicating to accelerating the development and use of open source software. Developers can be assured that those patents will not be enforced against them on open source software."

Patent non-enforcement will prove to be a key principle, since open source software development needs to be free of license encumbrances, not just "royalty-free." With increasing frequency, typical royalty-free (RF) patent licensing terms offered by commercial software vendors are being found incompatible with open source licensing and business models.

Open Source Development Labs (OSDL) is "home to Linus Torvalds, the creator of Linux. The organization is dedicated to accelerating the growth and adoption of Linux. Founded in 2000 by CA, Hitachi, HP, IBM, Intel and NEC, OSDL is a non-profit organization at the center of Linux supported by a global consortium of more than 60 of the world's largest Linux customers and IT industry leaders. OSDL sponsors industry-wide initiatives around Linux in telecommunications, in the enterprise data center and on corporate desktops. The Lab also provides Linux expertise and computing and test facilities in the United States and Japan available to developers around the world."

Patent Contributions: CA, IBM, Nokia, Novell, RedHat, Sun

The OSDL announcement notes earlier patent contributions/pledges: "[while] IBM, Nokia, Novell, Red Hat and Sun Microsystems pledge their intellectual property to the benefit of the open source community, to date there has not been a single, reliable place where developers and industry are able to advantage of these offerings." Some of these contributions are referenced here.

From the OSDL Announcement

The Open Source Development Labs (OSDL), a global consortium dedicated to accelerating the adoption of Linux, today announced a new initiative called the OSDL patent commons project designed to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry.

"The OSDL patent commons project is designed to increase the utility and value of the growing number of patent pledges and promises in the past year by providing a central repository where intellectual property can be held for the benefit of all of us," said Stuart Cohen, CEO of OSDL. "Our goal is to make it easier for developers and industry to take advantage of the good works of vendors, individuals and organizations who may wish to pledge patents and intellectual property in support of the community."

For many, the administrative and logistical challenges posed by granting individual licenses to the growing open source community can be a barrier to the formal licensing of patents. In addition, as more vendors such as IBM, Nokia, Novell, Red Hat and Sun Microsystems pledge their intellectual property to the benefit of the open source community, to date there has not been a single, reliable place where developers and industry are able to advantage of these offerings.

By contributing patents to the OSDL patent commons project, patent holders can be assured that the right to enforce the patents is administered by an organization dedicating to accelerating the development and use of open source software. Developers can be assured that those patents will not be enforced against them on open source software.

"Software patents are a huge potential threat to the ability of people to work together on open source," said Linus Torvalds. "Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat."

While still in the planning stages, the OSDL patent commons project will initially involve the following:

• A library and database that aggregates patent pledges made by companies. The library will also aggregate other legal solutions, such as indemnification programs offered by vendors of open source software.

• A collection of software patent licenses and software patents (issued and pending) held for the benefit of the open source community.

More details on the OSDL patent commons project will be announced in the coming months.

"OSDL is the ideal steward for such an important legal initiative as the patent commons project," said Eben Moglen, chair of the Software Freedom Law Center. "No matter what your stand on software patents, and I oppose them, I call on developers to contribute to the OSDL patent commons project because there is strength in numbers and when individual contributions are collected together it creates a protective haven where developers can innovate without fear."

Press and Commentary

• "Viewpoint: Foolproofing Open Source." By Stuart Cohen (CEO, Open Source Development Labs). From BusinessWeek Online (August 09, 2005). "Software patents are always a concern for developers and customers of proprietary and open-source software alike. The American Intellectual Property Law Association estimated the price tag to defend a typical software-patent lawsuit at $3 million. At OSDL, we don't have an immediate solution to this vexing problem for the general software industry. But we applaud recent steps taken by companies such as IBM, Nokia, Novell, Red Hat, Sun Microsystems, and others to pledge many of their software patents to a "patent commons" for the benefit of the open-source community. More than 3,000 patents have been pledged to date. We expect many more to follow. The idea is that a pool of software licenses and software patents (issued and pending) are held in something like a virtual trust for the benefit of both developers and users of open-source software. In general, the vendors who make this pledge are promising not to litigate against people and companies whom they might otherwise sue. These pledges help reassure companies who run open-source software in their business...

  We like this idea so much that we're about to take it one step further. We're establishing an OSDL patent commons project that aims to centralize the good works of these vendors, as well as future individuals and organizations who may wish to pledge patents... By establishing and maintaining a central repository with a library and database, we want to remove the logistical and administrative challenges both for those who pledge patents and those who use open-source software. We would hope that a one-stop commons — overseen by a nonprofit, vendor-neutral, and trusted friend — helps everyone. The patent commons project is another demonstration of how open source and Linux encourage contributions and sharing for the benefit of consumers and business..."

• "OSDL Creates Repository Of Open-Source Patents." By W. David Gardner. From InformationWeek (August 10, 2005). "In announcing the patents commons project, OSDL noted that members pledging their intellectual property for the benefit of the open-source community include IBM, Nokia, Novell, Red Hat, and Sun Microsystems... Citing the OSDL patent commons project, Florian Mueller, founder of Europe's NoSoftwarePatents.com campaign, said: 'It will only be a true protective shield if they gather patents that they can use to countersue the enemies of open source. The software patent game is like the Cold War: The only thing that protects you is the concept of mutually assured destruction.' Mueller said he is somewhat skeptical of the value of the OSDL commons project for European software interests because some of OSDL's most prominent members such as IBM and Sun Microsystems support the patenting of software, which NoSoftwarePatents.com opposes. He said the 500 patents that IBM had pledged to support the open-source movement were mostly irrelevant to the software patent conflicts in Europe. IBM, he noted, continues to support software patents. Mueller is the leader of a group of companies and organizations in Europe that wants to outlaw software patents entirely."

• "A Patent Commons Project for Open Source." By Ingrid Marson. From CNET News.com (August 10, 2005). "Open Source Development Labs revealed plans on Tuesday for a project that will aggregate information on patents that have been pledged to the open-source community.... Columbia Law School professor Eben Moglen, general counsel for the Free Software Foundation and the founder of the Software Freedom Law Center, which offers free legal advice to those in the open-source movement, praised the initiative and called on the community to support the project.

  Moglen: "OSDL is the ideal steward for such an important legal initiative as the patent commons project. No matter what your stand on software patents, and I oppose them, I call on developers to contribute to the OSDL patent commons project because there is strength in numbers and when individual contributions are collected together it creates a protective haven where developers can innovate without fear," Moglen said in a statement.

• "Perens Thumps OSDL Patent Pact." By Tom Sanders. From VNU-Network Computing (August 11, 2005). "The patent pool that OSDL earlier this week said it will start to build is useless in the defence against Microsoft, said open source activist Bruce Perens at the LinuxWorld conference in San Francisco. "The patents come from the wrong people," Perens said during a meeting with reporters, because only friends of open source will submit to the pool. The pool also is useless as a defence against patent claims because most of the main patent holders have cross licensing deals with each other. This means that large companies including Microsoft, IBM and HP have agreed to let the others use their patents...

  "If Microsoft turns out to be the aggressor, that does not help," noted Perens. "The pool is unfortunately turns out to be spitting in the wind." OSDL on Tuesday unveiled a Patent Commons Project that will build a library of patents that have been pledged to open source including the conditions of that pledge. The initiative is an attempt to decrease the threat of software patents against open source projects, which effectively is intended to prevent a repeat of the legal action that SCO undertook against Linux. "You have this skeleton in closet," warned Perens. "Every open source programme of any significant size infringes on ten or hundreds of patents'..."

• "OSDL Creates Patent Commons Project." By Jim Wagner. From InternetNews.com (August 10, 2005). "The OSDL patent commons project is still in the planning stages, OSDL officials said, and will initially consist of a library and database to aggregate the patent pledges made by companies in the past. The OSDL said it will not ask businesses that have already pledged patents to the open source community to cede control. Diane Peters, OSDL general counsel, said the organization will act as patent stewards for anyone who asks but doesn't expect any of the big companies to come forward with such a request. 'While we would love to have those, we certainly don't expect those to come to OSDL,' she said. Peters does expect individual developers and even universities to come forward with such requests, however, and will encourage them to do so. Where companies like IBM and HP can spend large amounts of money on patent enforcement, smaller organizations normally don't have the resources. She said the organization will announce soon the first individuals who have given the OSDL stewardship of their patents..."

• OSDL Begins Open-Source Patent Commons." By Steven J. Vaughan-Nichols. From eWEEK (August 10, 2005). "At San Francisco's LinuxWorld, Open Source Development Labs, a global consortium dedicated to accelerating the adoption of Linux, announced the OSDL patent commons project. The OSDL patent commons is meant to provide a central location for open-source-friendly software patents and patent pledges... the OSDL maintains that for many developers, the administrative and logistical challenges posed by granting individual licenses to the growing open-source community can be a barrier to the formal licensing of patents. At least one developer, OSDL employee and Linux creator Linus Torvalds, agreed. 'Software patents are a huge potential threat to the ability of people to work together on open source,' Torvalds said in a statement. 'Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat,' he said. In addition, OSDL said it believes that developers can be certain that patents contributed to the OSDL patent commons project will not be enforced against them on open-source software..."

• "OSDL Announces Patent Commons Project. Group Hopes to Encourage More Patent Holders to Contribute Intellectual Property to Open Source Community." By Dan Nystedt. From InfoWorld (August 09, 2005). "The Open Source Development Labs (OSDL), a global group dedicated to promoting Linux, on Tuesday announced a new initiative, called Patent Commons, to collect the software licenses and patents pledged to the open source community into a central repository to make them easier to access by developers, and encourage more patent holders to pledge their intellectual property to the cause. The move will increase the utility of the growing number of patent pledges and promises in the past year by providing a central location for open-source software developers..."

• "Open Source Patent Commons: OSDL Launches an Effort to "Pool" Patents." Blogged by Dave Rosenberg. InfoWorld. (August 09, 2005).

• "OSDL Launches Open Source Patent Protection." By Tom Sanders. From VNUNet.com (August 10, 2005). Novell Chief Executive Jack Messman said that he supported the project. "We are looking at how we can work with this," he said, adding that he expected to make a concrete announcement before the end of the year..."

• "OSDL Announces Patent Commons Project." "Here is the announcement for OSDL's "patent commons" project. Details are scarce, but it looks like a way for individual developers to contribute patents to a pool where they would be licensed for use in free software — and, presumably, as a defensive weapon in the case of a patent-based attack on free software. The PR includes endorsements from Linus Torvalds and Eben Moglen..."

LinuxWorld: Webbink Keynote

Also from LinuxWorld 2005: the Mark Webbink Keynote, as summarized by Dave Rosenberg in the Open Resource Blog (August 10, 2005).

Mark Webbink is Deputy General Counsel and Secretary, Red Hat, Inc. He presented on "Software Protection and the Impact on Innovation." — "The software industry is becoming more complicated every day. You have industry giants hanging on for dear life and open source upstarts trying to commoditize just about everything. All of the players are attempting to stake our intellectual property positions to make sure their turf is protected and they are safe from legal action. These protection issues are taking away from the software industry's true calling: innovation. How should software be protected? What drives individuals and companies to innovate? Shouldn't copyright be sufficient?"

From Dave Rosenberg's blog (adapted):

"According to Red Hat Deputy Counsel Mark Webbink, patents are no longer being used for innovation. Instead, they are ammunition for companies to maintain monopoly. Citing Microsoft's recent attempt to patent the insertion and removal of white space in documents and MS 14 patents on mouse cursor positioning, Webbink stated that patents are presenting a serious problem and in fact are making it difficult (maybe soon impossible) for companies to innovate and succeed. The economics ($5000/per patent search) work against any business who might be at risk...

150,000 patents and growing: With Microsoft attempting to get 3000 patents this year and the patent office issuing new patents 10-12k per year that would give Microsoft about one-third of the entire patent base winnings.

Patent Reform in Europe: The CII directive was defeated; Defeat new directive on criminal penalties; Assure interoperability; Assure software code alone is not patentable...

Need Patent Reform in the US: Seek restoration of the 2nd opposition period; Seek limitation of injunctive relief; Seek establishment of a USPTO prior art database for software; Seek a study of the impacts of patents on software...

Need to create an independent patent commons for open source...

Ask Microsoft to respect open source: "Promise not to sue independent developers with individual patent claims; Stop approaching end users-work with software developers (leave customers out of it)"

In conclusion, Webbink said "Innovation and patents are not the same thing. Patents are problematic to the industry, they are there to constrain and decrease innovation."

Principal References

• Announcement 2005-08-09: "OSDL Announces Patent Commons Project. Leading Linux Advocacy Consortium Will Collect Software Patents and Patent Pledges by Vendors, Industry and Developers."
• OSDL Patent Commons Project
• Open Source Development Labs
• Stuart Cohen - CEO, Open Source Development Labs, Inc.
• LinuxWorld Conference and Expo
• LinuxWorld BLOG
• "An Interview with Richard Stallman." By J.S. Kelly. From LinuxWorld.com (March 29, 2000). Copyright 2000 LinuxWorld.
• OpenPatents.org
• "Patents and Open Standards" - Main reference page.