LinuxCon: The mobile Linux patent landscape

It will come as no surprise to regular LWN readers that the patent situation for mobile Linux (and mobile devices in general) is an enormous mess. Open Invention Network CEO Keith Bergelt spoke at LinuxCon to outline how he sees the current landscape and to impart some thoughts on where he sees things going from here. In addition, he described several ways that the community can get involved to help beat back the patent threat, which is most prominent in the mobile space, but certainly not limited to that particular sphere.

Android rising

Bergelt said that his talk would center around Android, because it is the "focus of a lot of ire from Microsoft", but that the same threats exist against any mobile Linux system that becomes popular. The "threat landscape" is very dynamic, he said, because it is constantly changing as various players acquire more patents. Google's move to acquire Motorola Mobility is a "very significant" move that could also change things.

Clearly, Linux is on the rise in the mobile space. Right now it is Android that is leading the way, but he is "hopeful there will be more", citing webOS, LiMo, and MeeGo as possibilities. It is "really a two-horse race" at the moment, between iOS and Android, but others may come along. That would be good because it would offer more freedom of choice, he said.

The rise of Android has been "unprecedented". If you were looking forward from 18 months ago, you couldn't imagine that something would displace iOS on mobile devices, but that's what Android has done. Android now has an "irreversible position in the mobile space", he said.

He put up a famous (or infamous) graphic that circulated earlier this year (at right) which showed all of the different patent lawsuits currently pending against Android devices. While many may have seen that graphic elsewhere, Bergelt said, he credits Microsoft for it. We should credit who created the graphic "rather than who is pushing it", he said. When something is successful, it attracts attention, and that is what is happening with Android right now, and graphics like this one are evidence of that.

Are the current lawsuits a Linux concern or just an Android concern, he asked. It would be easy to see them as only a problem for Android itself, because, other than the kernel, Android shares little with a traditional Linux platform. But you rarely will see an actual Linux lawsuit, Bergelt said, because it has been developed for 20 years in the open. Instead, opponents have "patents on adjacent technologies" that are used to go after Linux-based systems.

Until MeeGo or webOS mature and get significant market share, "mobile Linux is Android". Whether one thinks that Android is the "perfect implementation" of Linux or not, the community needs to "be in support of the mobile Linux that's out there", he said. When other mobile Linux systems mature, "we should support them equally as well".

It is important to "ensure that Android is not pulled off the shelves", Bergelt said. Microsoft and Apple would like to see Android pulled and are using their patent portfolios to "slow or stall the commercial success of Linux". Until other mobile platforms emerge, threats against Android equate to threats against Linux. Android's viability is needed to prove that there is a market for Linux-based platforms, he said.

Secondary market for patents

The stakes are so high that the secondary market for patents is "overheated", Bergelt said. The "per patent price has risen to astronomical levels", which is well beyond any reasonable level for acquiring purely defensive patents. It is not about acquiring patents for licensing revenue either: "You are not going to get your money back from licensing them; that's ridiculous", he said. Companies are recognizing that this "land grab for patents" provides an opportunity to get more for their patents than they would be able to otherwise, which is putting more patents on the market.

The Nortel patents (which recently sold for $4.5 billion to a consortium including Apple and Microsoft) are particularly worrisome, Bergelt said, because they cover mobile communications and network management. The US Department of Justice (DoJ) is looking into that transaction, and members of the community can help inform the agency that there are concerns about those patents being used in anti-competitive ways. A resolution like what occurred with the Novell patents, where OIN can license them indefinitely, would be good. That particular outcome deprived Microsoft of the ability to own the Novell patents because of its history of anti-competitive behavior, he said.

Bergelt said that he has some empathy for Microsoft, because the company's history is weighing it down. "If the only thing you've known is being a monopolist, that's how you are going to work", he said. But the DoJ needs accurate information about previous and current behaviors of the purchasers of the Nortel patents. He encouraged those in the audience who knew of such behaviors to report them to the agency so that it could have a "balanced view" of the situation. The DoJ employees are "bright and accomplished", but that patent-based anti-competitive behavior is not something they normally consider, he said.

Companies that are pursuing the strategy of using patents to slow or stall competitors aren't trying to educate anyone, they are, instead, "interested in threatening people". But, "illegal behavior is illegal behavior, and that's what they're practicing", he said. Microsoft and Apple would much rather have it be a duopoly, rather than dealing with the "disruptive situation" that Linux brings. Neither of those two companies "have the ability to compete with Linux in the long term", Bergelt said.

The idea is to "tax" Linux heavily with licensing fees. Microsoft has pursued a "totem-building strategy", where it gets companies to license its "Linux patents", often by throwing those patent licenses into other, unrelated deals. This "creates a presumption" that the licenses have value. There is also a more targeted component where the company uses the other licensees—who may be price-insensitive and thus willing to sign suboptimal agreements—as a weapon against smaller, more price-sensitive companies. Microsoft will also use its patents on a particular technology as the centerpiece and throw in other patent licenses as part of any deal. The FAT filesystem patents, which expire soon, have been used that way. More recently, "active sync" is being used as a centerpiece, and the company claims ten patents on that technology.

But Microsoft cannot use the Novell patents in this way, and that's what Bergelt would like to see happen with the Nortel patents as well. Right now, the licensing fee that is being charged is $15 per mobile device, but Microsoft would like to get that up to $30-40 by adding on other patents. Apple's "touch" patents—which were mostly acquired, not developed by Apple—are being used in this way as well. This can change the decisions that vendors and mobile carriers make because at some point it becomes uneconomical to pay higher per unit royalties, he said.

There is also the problem of "opportunistic patent aggressors", which are typically "non-practicing entities" (NPEs), also known as "patent trolls". These organizations are focused on generating a return. He pointed to Intellectual Ventures (IV) as the "largest patent troll in the world". IV has used investment from universities and foundations—fooled by misleading information into investing in the company—to amass an enormous patent portfolio of 34,000 worldwide patents in 9,000 patent families, he said. IV is "not an innovation company", but is, instead, a "business designed to use patents to drive return".

The market for patents has led companies like InterDigital to put themselves on sale, Bergelt said. That company has 2500+ patents that "almost exclusively relate to mobile communication", and have generated billions of dollars in traditional licensing revenue. Their patents still have life left, but the overheated market provides a way to "cash out" their portfolio. In addition, financial services firms are pouring "billions" into patent companies, and they are looking for a return on those investments, he said.

Fighting the good fight

"Things are going to get worse before they get better", Bergelt said, which echoes numerous observers of the patent mess. He sees a need for "more people to work together" to try to, eventually, fix the problem. There are so many patents that shouldn't have been issued, "free radicals" he called them, that it will take a long time to undo that. Part of the problem is that『code is not searchable in a way that's useful』to determine "prior art", so patent examiners don't have an easy way to disallow patents based on earlier implementations of the idea.

There are several defensive patent pools that have spent "billions to acquire patents". These include RPX, which has 100 members, and AlliedSecurityTrust (AST), which has 22 members, as well as OIN itself. OIN is a『very peculiar company』in that has six members but is "tasked with protecting the community". OIN and its members know that the community is "where new innovation is coming from", Bergelt said, and those innovations can be used to build billion dollar companies.

There is work to be done on mobilizing the open source software community to help fight these patents, he said. There is a『tremendous amount of prior art』that has not been identified, so OIN and others have been working on "structures" where developers can document their ideas in ways that can be used by the patent office. One of those is the "defensive publication", which is like a "patent without claims". OIN has spent "tens of thousands of dollars" to try to educate developers on how to defensively publish their ideas. In addition, there are opportunities for the community to identify existing prior art that can limit the claims or possibly invalidate patents that are in the examination process.

Unlike a technology platform that can be "overtaken by events", open source is a social phenomenon that is unstoppable, Bergelt said; we are not going back to the siloed world. Collaboration "low in the stack", while competing high in the stack, where companies may have intellectual property interests, is the way new systems will be developed.

Bergelt also gave an overview of the work that the Linux Defenders project is doing with help from the community. It is highlighting patent applications that shouldn't go forward by pointing out prior art. That means that the community "saves us the problem of having another free radical". After patents are issued, the Post-Issue Peer to Patent initiative allows the community to potentially invalidate or limit the scope of bad patents. But in order for those projects to work, more community involvement is needed, he said.

The "stakes have been raised", Bergelt said, and the computing landscape is being reshaped by smartphones. New technologies are going to allow these devices to go way beyond where they are today, he said, and that's why he's excited to see things like MeeGo and webOS. Microsoft is now recognizing that personal computing is undergoing a major shift, and it (and others) are fighting the competition in the mobile space with any weapons they can find.

Community engagement is needed in several areas, but identifying and codifying prior art is the biggest piece. We will see lots of bidding for the InterDigital portfolio over the next several months, there will be more IP speculators and trolls trying to cash in, and anti-competitive actions from larger companies will take place. We should support Android and the platforms that come after it and remember that our opponents "are going to fight like hell", Bergelt said.

After Bergelt finished, the Linux Foundation's legal counsel, Karen Copenhaver, amplified one part of Bergelt's message. The DoJ, she said, is waiting to let things play out with the Nortel patents to see if there is a big lawsuit or International Trade Commission (ITC) action using those patents. But the impact of the patents happens『long before that』in meetings between the patent consortium and vendors. So it is imperative that we provide the DoJ information on how these patents affect Linux well before any litigation occurs, she said. Both Copenhaver and Bergelt were clearly reaching out to vendors and others who have been threatened with patent actions by Microsoft, Apple, or other members of the patent-purchasing consortium.

[ I would like to thank the Linux Foundation for travel assistance to attend LinuxCon. ]