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Conservancy Blog
Displaying posts
tagged patent
Microsoft & exFAT: One Step on a Long Journey
byKaren Sandler
on August 30, 2019
In 2013, Conservancy helped resolve a GPL violation by Samsung which arose primarily due to complications
around Microsoft's patent holdings related to the exFAT filesystem. At the time, Microsoft was known for demanding patent fees from Linux users and redistributors.
Late last year, Microsoft joined Open Invention Network. As we wrote at the time, this action had limited impact, as key patents like exFAT were not implemented in any packages
that were part of OIN's “Linux System Definition”. We asked Microsoft at the time to upstream the exFAT code under GPLv2-or-later to confirm its intention to end patent aggression.
This week, in response to recent follow-up requests from upstream Linux developers, Microsoft announced that they would sign off on inclusion of exFAT in upstream Linux. This is the first step toward real patent peace related to exFAT.
This process for exFAT will only complete once all of the following happen: the exFAT patch appears in an official Linux release, that official Linux release becomes part of OIN's Linux System Definition (this generally happens automatically, as future versions of Linux are included by default), and Microsoft distributes a copy of Linux themselves that contains this technology. This last step is critical, as the OIN patent license is not as comprehensive as a full patent license from Microsoft. Any participating company can withdraw at any time from OIN1 (and there have been several withdrawals in the past, including Oracle, Facebook, HP and Symantec). After a transition period, the safety of OIN's non-aggression pact weakens. In contrast, when a company distributes software under the GPL, there is an irrevocable implicit patent license with the distribution, and GPLv2§7 further assures patent licensing safety.
Eventually, Microsoft will likely distribute a version of Linux containing exFAT to its Azure users and in its Windows Subsystem for Linux. However, until that occurs, the issue is not really resolved. An expedient solution is as we previously requested: that Microsoft bring definitive patent safety to free and open source software by publicly granting a permanent patent license for all patents Microsoft holds that read on Linux. Additionally, we invite Microsoft to keep pace with its peers such as Google and Red Hat, who years ago made very public patent promises to FOSS users. While the actions taken thus far are intermediary steps, I applaud Microsoft's journey from being a company that long attacked FOSS to becoming a contributor.
1 The legal mechanism for withdrawal is exercise of a “Limitation Election” in the OIN patent license agreement.
[permalink]
Tags:
conservancy,
patent,
law
Thoughts on Microsoft Joining OIN's Patent Non-Aggression Pact
byBradley M. Kühn
on October 10, 2018
Folks lauded today that Microsoft has joined the Open Invention Network (OIN)'s limited patent non-aggression pact, suggesting that perhaps it will bring peace in our time regarding Microsoft's historical patent aggression. While today's announcement is a step forward, we call on Microsoft to make this just the beginning of their efforts to stop their patent aggression efforts against the software freedom community.
The OIN patent non-aggression pact is governed by something called the Linux System Definition. This is the most important component of the OIN non-aggression pact, because it's often surprising what is not included in that Definition especially when compared with Microsoft's patent aggression activities. Most importantly, the non-aggression pact only applies to the upstream versions of software, including Linux itself.
Weknow that Microsoft has done patent troll shakedowns in the past on Linux products related to the exfat filesystem. While we at Conservancy were successful in getting the code that implements exfat for Linux released under GPL (by Samsung), that code has not been upstreamed into Linux. So, Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact.
We now ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggression against Linux and its users, to now submit to upstream the exfat code themselves under GPLv2-or-later. This would provide two important protections to Linux users regarding exfat: (a) it would include any patents that read on exfat as part of OIN's non-aggression pact while Microsoft participates in OIN, and (b) it would provide the various benefits that GPLv2-or-later provides regarding patents, including an implied patent license and those protections provided by GPLv2§7 (and possibly other GPL protections and assurances as well)
[permalink]
Tags:
conservancy,
patent,
licensing
How the TC Heartland decision helps free and open source software
byTony Sebro
on May 23, 2017
Yesterday, the United States Supreme Court published a decision that is likely to make it
harder for patent holders to use frivolous infringement lawsuits to extort
settlement fees. In the TC
Heartland LLC v. Kraft Foods Group Brands LLC case, the Court ruled that
patent holders can only file suit in the jurisdiction where the alleged
infringer is incorporated. Prior to TC Heartland, US patent holders
had more flexibility to file suit in multiple jurisdictions, and as a result
would often select seemingly unrelated jurisdictions for strategic reasons.
The Eastern District Court in Texas is, by far, the most popular venue in
the United States for patent holders to file suit, due to its reputation for
plaintiff-friendly judges and aggressively brisk (and, therefore, cheaper)
litigation schedules. The United States federal court system has ninety
four district courts, yet over a third of all patent litigations filed in the United States in the first quarter
of 2017 were filed in the Eastern District. And, traditionally, the overwhelming majority
of such cases filed in the Eastern District have been brought by non-practicing entities ("NPEs"; unaffectionately
known as "patent trolls") —
patent holders who enforce patents without being engaged in the
business of selling the inventions disclosed in the patents. The media has covered
the remarkable
growth of a cottage industry centered around patent litigation
in Marshall, Texas, the small town where the Eastern District is located.
Many NPEs have built their business models around the economies of scale and
efficiencies of pushing frivolous suits through this single venue.
Hopefully, the fresh burden of having to file suit on a defendant's "home turf" will
reduce the volume of nuisance patent litigation — and disrupt the
business models that fund it.
As a public charity, Conservancy is not a traditional target for NPEs:
we don't generate the kind of product-related revenue streams that NPEs
typically hold for ransom in exchange for quick settlement payments. That
said, we acknowledge that the threat of NPE litigation casts a shadow on the entire
technology sector, including on free and open source communities. We believe
that community-vetted free and open source licenses are sufficient to
create a pool of explicit and/or implied patent licenses between contributors
and users. But, that hasn't stopped many a nervous in-house counsel from
using layers of extraneous paperwork to reduce the patent exposure
they think participating in a free and open source software project may
create. We hope that the TC Heartland decision sends a signal to
would-be NPEs that the US judiciary will no longer be as complicit in
facilitating nuisance patent litigation. We also hope that software
developers and users of all types are encouraged by the decision, and are less likely to
allow fear, uncertainty, and doubt around NPE patent exposure chill their
participation in free and open source software communities.
[permalink]
Tags:
patent,
law
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