Contents

• Summary
• From the Announcement
• Press and Commentary
• Principal References

A joint announcement from IBM, Novell, Philips, Red Hat, and Sony describes the creation of a new Open Invention Network (OIN) dedicated to the promotion of technology innovation around Linux.

Led by CEO Jerry Rosenthal, former Vice President of IBM's Intellectual Property and Licensing business, the partnership will build a collection of patents and "offer them royalty-free to promote Linux and spur innovation."

The company is said to be the first of its kind: "Patents owned by Open Invention Network will be available on a royalty-free basis to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications."

Patent pools are more often created for offensive purposes: major patent holders in a narrow application domain privately agree to cross-license patents to each other, while creating an unopposable cartel that can fix royalty fees and demand payment from any other (non-cartel) companies. The Open Invention Network is something of the opposite: a patent pool created to promote patent non-enforcement, or non-aggressive patent use, to reduce patent litigation and create an opportunity for innovation in a patent-free (or mostly patent-free) global context.

The Open Invention Network represents the latest in a series of similar patent contribution initiatives designed to limit the deleterious, stifling effect of patented technology in certain computing application areas. Previously, CA, IBM, Nokia, Novell, OSDL, RedHat, and Sun have announced programs of "patent disarmament" through contribution of patents to royalty-free use, creating the basis for a patent commons.

According to several statements from Jerry Rosenthal and others, the goal of the OIN collaboration is not revenue collection, but freedom to innovate in a patent-free framework: "A new model of intellectual property management for Linux must be established to maintain advances in software innovation — regardless of the size or type of business or organization. Open Invention Network is not focused on income or profit generation with our patents, but on using them to promote a positive, fertile ecosystem for the Linux operating system and to drive innovation and choice into the marketplace. We intend to spur innovation in IT and across industries by helping software developers focus on what they do best — developing great Linux-related software with greater assurance about intellectual property issues."

The Open Invention Network's patent pool will be seeded by a collection of patents bought (secretly, at the time) by Novell in an auction. The Open Invention Network plans to broaden this practice of buying up patents in order to "take them off the table" so that they cannot be used by patent trolls (aka patent terrorists) to cripple the software industry. In November/December 2004, Novell negotiated the purchase of patents that caused considerable alarm because they were up for grabs.

According to the eWEEK summary of May 2005, it was "revealed that Novell picked up the 39 important business-to-business electronic commerce and Web services patents from bankrupt Commerce One, and the company has declared its intention to use them to protect its open-source offerings. The sale of Commerce One Inc.'s 39 Web services patents went to a mysterious high bidder, JGR Acquisition Inc., for $15.5 million, in a December auction at the Bankruptcy Court for the Northern District of California in San Francisco. The patents, which amounted to seven actual patents and 32 patent applications, include technology that broadly describes the framework for B2B using XML, the language family behind Web services."

Editor's opinion: The repeated attempts by major corporations and industry groups to take software patents out of circulation — to defang them, disarm them, and quarantine them like chemical warfare agents — suggests some deep flaws in the (U.S.) patent system. If a software patent indeed constitutes valid (intellectual) property worthy of the name, should it not be a "tradable and arbitrageable commodity"? How can we justify the right of established pure-play IP companies and industry cartels (witness MPEG LA's hijack of the OMA standard) to aggressively exploit patents, while condemning individuals and new IP startups as "trolls"? Why should it be objectionable for a company that's tanking financially to engage in patent property exploitation — if software patents are a normal, harmless part of doing business? Whose opportunities for innovation are hindered or helped by the rapidly growing "patent thicket" and "patent mine field" — certain to become a thicker, thornier thicket if the U.S. moves to a first-to-file rather than the first-to-invent model? In which domains should there be agreement that voluntary non-enforcement of patents, non-aggressive patent pooling, and "patent commons" represent the ideal solution for global benefit?

From the Announcement

Open Invention Network Formed to Promote Linux and Spur Innovation Globally Through Access to Key Patents. Investors Include IBM, Novell, Philips, Red Hat, and Sony

Open Invention Network (OIN), a company that has and will acquire patents and offer them royalty-free to promote Linux and spur innovation globally, was launched today with financial support from IBM, Novell, Philips, Red Hat, and Sony. The company, believed to be the first of its kind, is creating a new model where patents are openly shared in a collaborative environment and used to facilitate the advancement of applications for, and components of, the Linux operating system.

"Open collaboration is critical for driving innovation, which fuels global economic growth. Impediments to collaboration on the Linux operating system seriously jeopardize innovation. A new model of intellectual property management for Linux must be established to maintain advances in software innovation — regardless of the size or type of business or organization," said Jerry Rosenthal, chief executive officer at Open Invention Network. The company will foster an open, collaborative environment that stimulates advances in Linux — helping ensure the continuation of global innovation that has benefited software vendors, customers, emerging markets and investors, among others.

Patents owned by Open Invention Network will be available on a royalty-free basis to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications.

Open Invention Network believes that creating a new system to manage and ensure access to key patents for the Linux operating system will have a significant economic impact. According to International Data Corporation, the worldwide Linux business is expected to grow 25.9 percent annually, doubling from $20 billion in 2005 to more than $40 billion in 2008.

"Open Invention Network is not focused on income or profit generation with our patents, but on using them to promote a positive, fertile ecosystem for the Linux operating system and to drive innovation and choice into the marketplace," said Mr. Rosenthal. "We intend to spur innovation in IT and across industries by helping software developers focus on what they do best — developing great Linux-related software with greater assurance about intellectual property issues."

Among Open Invention Network's initial patent holdings is a set of business-to-business electronic commerce patents that were purchased from Commerce One by JGR, a subsidiary of Novell.

For more information go to www.openinventionnetwork.com.

Press and Commentary

• "Companies Join Up to Share Patents for Linux." By Steven J. Vaughan-Nichols. From (November 10, 2005). "Earlier this year, IBM's chief Linux strategist, Adam Jollins, had hinted that IBM was considering helping to create an organization like OIN ["IBM's Patent Model Spurs Innovation"]. 'We are interested in innovation, not just in companies and silos, but through collaboration with other partners. Our goal now is to find a way to encourage collaborative connections, beyond specific products, and to determine how the process of innovation works,' said Jollins... Although it's not part of the OIN, Hewlett-Packard Co. favors its goals. 'HP is pleased that another organization has joined it to improve legal protection for those developing and deploying open-source and Linux-based technologies,' said Brandy Baxter, an HP spokesperson...."

• "IBM, Sony, Red Hat Join Others in Linux Patent Venture. Open Invention Network Will Acquire Patents and Offer Them Royalty Free." By Martyn Williams. From InfoWorld (November 10, 2005). "Five of the biggest names in technology have funded a new venture called the Open Invention Network that will acquire patents and offer them royalty free to promote the Linux open-source operating system. The Open Invention Network was formed with undisclosed investments from IBM, Novell, Koninklijke Philips Electronics, Sony, and Red Hat, and will be headed by Jerry Rosenthal, who was most recently vice president of IBM's Intellectual Property and Licensing business. When the Open Invention Network acquires patents they will be available to any company, institution or individual that agrees not to assert its patents against the Linux OS or certain Linux-related applications. Among its initial patent holdings will be a set of business-to-business electronic commerce patents that were purchased from Commerce One by a Novell subsidiary... Some think further lawsuits are inevitable, in part because the patent issuing process has been lax and excessively wide-ranging patents have been granted by the U.S. Patent and Trademark Office. In February, Mitchell Kapor, a founder of Lotus Development and a prominent open-source backer, warned that bad patents could lead companies like Microsoft to launch wide-ranging lawsuits, which he called 'patent WMDs,' (weapons of mass destruction) against the open-source industry..."

• "Linux Vendors Begin Patent Stockpiling." By CBR Staff Writer. From Computer Business Review Online (November 11, 2005). "IBM has teamed up with Red Hat, Novell, Sony, and Royal Philips Electronics to launch a new non-profit company that will acquire patents and offer them royalty-free to Linux supporters. This marks something of a change of strategy among Linux vendors, which previously adopted the approach of pledging patents to the open source community... As well as undisclosed levels of funding from IBM, Red Hat, Novell, Sony, and Philips, OIN has also been formed with an initial set of business-to-business ecommerce patents that Novell quietly acquired from the bankrupt Commerce One for $15.5 million in December 2004. The formation of the organization indicates a change of tactic for Linux vendors such as IBM, Red Hat, and Novell, which have all previously taken the approach of pledging patents to the open source community. IBM started the trend in August 2004 when it chose not to cash-in on patents that it owns inside the Linux kernel, while Novell vowed in October that it would use its patent portfolio to protect open source products against third-party patent challenges..."

• "Open Invention Network Founded." By Bruce Lowry. From Novell Open PR (November 10, 2005). "Novell is one of the backers of a new company launched today, Open Invention Network, that is being formed to help drive advancement of applications for, and components of, Linux. Open Invention Network will do this by buying patents that can help Linux developers. Patents owned by Open Invention Network will be available on a royalty-free basis to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications. The others backers of this are IBM, Sony, Philips, and Red Hat. Among OIN's initial patent holdings is a set of business-to-business electronic commerce patents that were purchased from Commerce One by JGR, a subsidiary of Novell, earlier this year. We think the creation of OIN is an important step forward for Linux..."

• "Linux Backers Form Patent-Sharing Firm." From Reuters, published on ZDNet News (November 10, 2005). "The Open Invention Network (OIN), as the new firm unveiled on Thursday is known, could mark a breakthrough in resolving how to protect vendors and customers from patent royalty disputes resulting from freely shared Linux code. If OIN's approach to managing intellectual property wins acceptance, it could overcome a big stumbling block to wider corporate adoption of Linux and pose challenges for major opponent Microsoft, which has argued that relying on 'open source' software poses legal risks... OIN represents a new form of cross-licensing that its backers say could spur innovation. 'A lot of lawyers are going to throw their hands up and ask, 'How do we make money from this?' Doherty said. 'The answer is, 'Maybe they don't.' The company, which will be based in Westchester County, where IBM is headquartered, offers a new model for managing intellectual property in which patents are openly shared to aid the advancement of Linux... Rosenthal said in a phone interview that he had a pool of funding that was all he needed to go out and acquire the patent portfolio to defend core Linux software and applications. 'I am very comfortable that I have sufficient funding to do what I need to do for the foreseeable future,' he said. 'This is really about Linux and the opportunity to expand the Linux economy,' he said. 'We are seeking no royalties'..."

• Open Invention Network Begins Stockpiling Patents." By Pamela Jones. From Groklaw (November 10, 2005). "Thank you, Novell, for buying up Commerce One Inc.'s patents. I still have conversations sometimes about patent pools, and I still come across folks who don't think they have any value. I always try my best to explain why I think they do, and I'm very happy to see that IBM, Red Hat, Sony, Philips and Novell not only agree but are doing something massive about it. The patent threat is real, and GNU/Linux needs protection. Individual FOSS developers can't afford to join the Rich Guy's Patent Club and do cross-licensing deals, so the only legal option for them is to pay royalties, and that's a mighty quick way to ruin the value of GNU/Linux. Let's not even talk about what happens to the GPL if the globe is papered with hostile patents. Companies who see the danger are stepping forward. It's not the total solution, because patent law currently is so noxious, but it's a vital piece. The real solution is for patents and software to get a divorce on the grounds of incompatibility. However, since that is not likely to happen in the US any time soon, ideas like this can create a safer environment for FOSS development. So if you hear about a company going out of business and you know they have Linux-related patents, tell Open Invention Network, or email me, and I'll pass it along. Don't just leave a comment though. The idea is to buy up such patents before others can..."

• "IBM And Sony Form Linux Alliance." Slashdot (November 10, 2005). See amidst the noise, "Potentially awesome" by Ryvar: "The idea of an anti-patent patent trust is as old as the hills, but to see this much corporate clout behind it was unthinkable not five years ago. It feels like there's been a sea-change and I like it. More important than helping IBM and Sony fight Microsoft, if this idea gained momentum it could seriously roll back a lot of the current technical stagnation on account of software/algorithm patents. Color me cautiously hopeful..."

• Previously: "Novell Acquires Valuable B2B, Web Services Patents." By Steven J. Vaughan-Nichols. From eWEEK (May 3, 2005). "It has been revealed that Novell picked up 39 important business-to-business electronic commerce and Web services patents from bankrupt Commerce One recently, and the company has declared its intention to use them to protect its open-source offerings. The sale of Commerce One Inc.'s 39 Web services patents went to a mysterious high bidder, JGR Acquisition Inc., for $15.5 million, in a December auction at the Bankruptcy Court for the Northern District of California in San Francisco. The patents, which amounted to seven actual patents and 32 patent applications, include technology that broadly describes the framework for B2B using XML, the language family behind Web services. Specifically, this IP (intellectual property) is the foundation for the important xCBL (XML Common Business Library) and OASIS' (Organization for the Advancement of Structured Information Standards') UBL (Universal Business Language) standards..."

Principal References

• Announcement 2005-11-10: "Open Invention Network Formed to Promote Linux and Spur Innovation Globally Through Access to Key Patents. Investors Include IBM, Novell, Philips, Red Hat, and Sony."
• Open Invention Network (OIN). Web site.
• Jerry Rosenthal, CEO. Biographical sketch. Formerly: Vice President of IBM's Intellectual Property and Licensing business.
• Patent Contributions: CA, IBM, Nokia, Novell, OSDL, RedHat, Sun
• Red Hat, Inc. Statement of Position and Our Promise on Software Patents
• "The Patent System and the New Economy. March 10, 2005. Jonathan Crim, of the Washington Post.
• "GSM Association Rejects New DRM Patent License Terms." May 5, 2005.
• Patent Contributions: CA, IBM, Nokia, Novell, OIN, RedHat, Sun:
  • Computer Associates
  • IBM
  • Nokia
  • Novell
  • Open Invention Network (OIN)
  • OSDL Patent Commons Project
  • Red Hat
  • Sun Microsystems
• Earlier news:
  • Sun Patent Non-Assertion Covenant for OpenDocument Offers Model for Standards
  • Open Source Development Labs (OSDL) Announces Patent Commons Project. With announcement.
  • Sun Releases Solaris Operating System and 1600 Patents under CDDL Open Source License
  • IBM Proposes a Patent Commons for Royalty-Free Open Source Software Development
  • "CommerceNet Proposes Collecting Contributions to Purchase Key Web Services Patents."
• "Patents and Open Standards" - General reference page.
• "XML and Digital Rights Management (DRM)" - General reference page.