Microsoft Joins Open Invention Network In A “Nice Validation” Of Open Source Movement

Tech giant Microsoft’s 10 October announcement that it will participate in the Open Invention Network is a “nice validation” of the organisation and a pragmatic acknowledgement that the open source software community is interdependent, OIN CEO Keith Bergelt said in an 11 October interview. Microsoft said its decision to join reflects its changing views on patent practice.

The OIN, which is coming up to its 14^th anniversary, was created to support a model of collaboration, rather than litigation, on patents related to the Linux system, Bergelt said. Linux is a free operating system developed under the GNU General Public License, an OIN FAQ says. Its source code is freely available to everyone and, as the most prevalent form of open source software, it “touches people multiple times every day.”

Threats to Linux historically arose from companies such as Microsoft that were willing to use patents to stall it, Bergelt said. Over time, the problem has morphed from patent litigation threats on products that incorporate and use Linux code to pressure from proprietary operating companies increasingly reliant on income from licensing patents, he said. Those companies were using patents incorporating Linux core functionality to threaten other businesses, he said.

OIN was formed by six corporations who each anted up $20 million to support the model of collaboration, Bergelt said. There are now over 2,650 companies involved, among them Google, Sony, Toyota and IBM, with Microsoft the latest to sign on. Participants agree not to sue on any Linux-related patent they own and to cross-license it for other members to use free of charge, he said.

Cross-licensing was developed to address the fact that Linux, once used only in enterprise technology, has now expanded to power grids, banking, the automotive sector and beyond. OIN patents cover those which read on core Linux and Linux system functionality, Bergelt said.

“Social Imperative” to Use Open Source

Open source is as much a social as a technology movement, Bergelt said. It allows developers to come together to create more elegant solutions than the silo (proprietary) mentality can accomplish, he said. OIN focuses on patent “non-aggression” in the core of Linux, not in the application layer, where companies are free to develop proprietary solutions and litigate, he said. Patents that don’t read on Linux functionality are not under the network’s watch, but it will step into Linux-related lawsuits, he said.

Thousands of other companies are using or will use open source code, Bergelt told us. Many others don’t, but there is a “social imperative” in the open source community, he said. OIN owns 1300 patents and applications, purchased for $100 million, that read on many technologies. The idea is to entice people to participate in the social experiment, he said.

OIN creates a “parallel universe” to that of the technology sector, he said: It goes beyond legal agreements to the way companies comport themselves in the patent world. Those who don’t behave well will struggle to attract good code writers, many of whom are anti-patent or neutral, and who pay attention to how companies behave, he said.

Asked whether Microsoft’s decision to join surprised him, Bergelt said it was a “nice validation” of the fact that OIN is “what you do when you’re authentic.” Microsoft has been moving in that direction by serving on the Linux Foundation Board [corrected], contributing more code to projects, and so on, he said. It’s gratifying to see that what OIN is doing is having an effect, he added.

Microsoft’s “Evolving Patent Practice”

Microsoft “sees open source as a key innovation engine,” Corporate Vice President and Chief IP Counsel Erich Andersen said in the companies’ press statement. The protection OIN offers the open source community “helps increase global contributions to and adoption of open source technologies,” he said. The company has licensed its entire patent portfolio to OIN licenses covering the Linux System, a spokesperson said.

Asked what prompted Microsoft to join now rather than at some earlier point, the spokesperson said: “Joining OIN reflects Microsoft’s patent practice evolving in lock-step with the company’s views on Linux and open source more generally. We began this journey over two years ago through programs like Azure IP Advantage, which extended Microsoft’s indemnification pledge to open source software powering Azure services. We doubled down on this new approach when we stood with Red Hat and others to apply GPL v. 3 ‘cure’ principles to GPL v. 2 code, and then recently joined the LOT Network, an organization dedicated to addressing patent abuse by companies in the business of assertion.”

Andersen announced Microsoft’s association with the LOT Network, in a 4 October blog. In it, he said the company has seen the patent troll problem first-hand. “We’ve faced hundreds of meritless patent assertions and lawsuits over the years, and we want to do more to help others dealing this issue,” Andersen wrote. And while those problems are “less acute in the US today than in the past, in part because of changes in the law, the challenge persists for many businesses.”

Joining the LOT Network means the company is “continuing on the path” it started with the introduction of the Azure IP Advantage programmer in 2017, Andersen said. Under that program, the company defends and indemnifies developers against claims of IP infringements even if the service powering Azure was built on open source, he said. Microsoft also said that if it transferred a patent to a company in the business of asserting patents, Azure customers would get a license for free, he said. The LOT membership expands that pledge to other companies in that network, he said.

Free Software Foundation Pleased but Wary

The Free Software Foundation (FSF) applauded the move but said it does not fully address Microsoft’s history of using computational idea patents and intimidating free software developers.

FSF has for many years “called on Microsoft to cease its use of computational idea patents to aggressively intimidate free software developers, distributors and users,” it said on 11 October. “Now, finally, these calls have met with some tentative success.”

Joining OIN and LOT do not, however, fully address the problem of computational idea patents or Microsoft’s specific infringement claims, nor do they mean that the company has freely licensed its entire patent portfolio, FSF said. LOT only deals with the problem of patent trolling by non-practicing entities, and OIN’s non-aggression agreement only covers a defined list of free software packages, it said.

The foundation urged Microsoft to “make a clear, unambiguous statement that it has ceased all patent infringement claims on the use of Linux in Android.” It also called for the company to work within OIN to broaden the definition of what Microsoft calls the “Linux System” so that the list of packages protected from patents includes everything found in a GNU/Linux system; and to use “past patent royalties extorted from free software to fund the effective abolition of all patents covering ideas in software.”

 

Image Credits: Open Innovation Network