LFCS 2012: The Linux System Definition

Open Invention Network (OIN) CEO Keith Bergelt came to the Linux Foundation Collaboration Summit to update attendees on OIN's recent expansion of the "Linux System Definition" as well as its plans for the future. The system definition is important because the packages listed there are eligible for patent protection via OIN and its members' patents. The update was significant, but there are other interesting things going on at OIN as well.

History

OIN was formed nearly eight years ago, "in the wake of SCO", Bergelt said. SCO "went away", but that case served as a wakeup call to some of the companies that were making big commitments to Linux. They recognized that patents could end up being a real problem for Linux. Three companies in particular, IBM, Red Hat, and Novell, got together to try to combat that problem; they were later joined by NEC, Phillips, and Sony. Those companies invested "hundreds of millions" of dollars in a standing fund to acquire patents.

In other businesses, there are a fixed number of competitors that one can build up patent cross-licensing agreements with. But Linux has "neither a head or a tail", Bergelt said, so it can't really handle patents in the standard way. The companies realized that Linux is not a model that will deal well with patent attacks. The idea behind OIN was that those companies would share their patents on a "fully paid-up basis" (i.e. without requiring royalties) among themselves, but also with others who joined the organization.

The basic idea, Bergelt said, was to allow freedom of choice for those who might be looking to adopt Linux by removing some of the patent uncertainty. If Linux is not the best choice, then "shame on the developers", but in most cases it is the best choice when it can compete fairly. Open source does not operate in a vacuum, but is faced with a world where litigation is a vehicle for companies that cannot compete in the marketplace, he said.

OIN activities

OIN has hundreds of patents in "dozens of portfolios", he said, some of which are fundamental or essential in "several key areas". It does 45-50 patent applications each year, as well as filing multiple defensive publications. The defensive publications are meant to combat aggressive patenting by companies outside of the Linux ecosystem, which often results in them "patenting things that open source had developed long ago". These efforts are meant to deal with the excessive number of patents that have been granted in the last 20 years.

The patents that read on the packages that make up the Linux System Definition are available to OIN licensees on a royalty-free basis. That includes the patents that OIN owns as well as any that are owned by the licensees. In addition, licensees must『forbear Linux-related litigation』using their patents, he said.

OIN is also involved in defensive activities of various sorts. It gives assistance to companies that are undergoing patent attacks. That includes finding people that can help the company fend off the attack or for OIN to help them directly. Giving companies ideas of where they might be able to acquire useful patents to head off an attack, consulting on how to create a formidable defense, and offering up information about prior art are the kinds of things that OIN will do. Typically the attack is really not against just the one company, but is part of a larger strategy from the patent aggressor, which means that the information gathered and shared may be able to be reused at some point.

There is also the Linux Defenders project which OIN helped to start with the Software Freedom Law Center and the Linux Foundation four years ago. It seeks to work with the community to identify prior art for patent applications to potentially cause them to be rejected. In addition, it tries to invalidate patents that have already been granted by finding prior art. OIN is considering becoming "much more aggressive" in those endeavors, Bergelt said, and may be hiring more people to work on that. Part of that effort would be to work with projects and community members to help "defuse the time bomb" that patents held by foes represent.

There are currently over 440 OIN licensees, he said. The organization holds 400+ US patents and 600+ when foreign patents are added in. It has also created more than 250 defensive publications.

Those defensive publications generally aren't created by project members, Bergelt said, in answer to a question from the audience. OIN does not want community members to have to become experts in defensive publications and, instead, will do the "heavy lifting" to create them. Anything that a developer thinks is "new or novel" has the potential to be written up as a defensive publication. The bar is "not very high", he said, as the patents that are granted will attest. The bar is even lower for defensive publications.

Community members do not have to codify their idea, if they can just verbalize it, OIN can turn that into a defensive publication. Those publications can then work as an "anti-toxin" of sorts against bad patents and applications. OIN has been trying to get graduate students involved, as well, to work on the publications. It is "inventing in a way that prevents others from getting bad patents". One question that has come up in conversations with Bradley Kuhn, he said, is if we eliminate all of the bad patents, are we left with really good patents? The answer is that what's left after getting rid of the bad patents is "very limited".

Expanding the Linux System Definition

In its effort to "demilitarize the patent landscape", OIN expanded the Linux System Definition in March. The number of packages covered rose from 1100 to 1800 and will grow further over time, he said. OIN is looking at doing yearly updates to the definition, but it may do a mobile Linux update this (northern hemisphere) summer. There are already some packages that have been nominated for inclusion and he encouraged everyone to look at the definition and lists of packages in order to nominate those they thought should be included.

From the audience, Kuhn asked about whether the decisions on adding or not adding packages could be made transparent, so that the community could get feedback on its nominees. Bergelt said that OIN will explain its decisions, and will be putting up a web page for nominations sometime soon. He said that Simon Phipps had already recommended LibreOffice, for example, since Linux distributions have moved to that office suite.

One of the main efforts that OIN is now making is to reach out to the community. He said that while he wears a suit, many of the people that work for him do not and are members of the community. The organization is attending more events, and trying to involve the community in its efforts. In addition, it is doing more workshops, rather than talks, to try to get the community up to speed on the defensive publication anti-toxin. Attending various events has "made me realize what Linux is about", he said, which is "people sharing ideas". Those ideas can get "codified as either swords or shields".

OIN has expanded its staff recently as well. Deb Nicholson was named as the community outreach director for OIN. In addition, Linux Defenders has added Andrea Casillas as its director and Armijn Hemel as its European coordinator.

Unique economic benefits

OIN is also leading an effort to highlight the『unique economic benefits from open source』to the International Trade Commission (ITC). Patent trolls and others are increasingly bringing complaints of patent infringement to the ITC, but the only remedy it has available is to order an injunction against the import of the product. Those injunctions can "put you out of business" because it can take $8-12 million to defend against an ITC injunction. That process takes a year, he said, which sounds good in comparison to patent suits which often stretch much longer, but it means that a company needs "lots of fast money" to defend themselves, so most are willing to settle for a much higher license fee than the market would normally bear.

Those higher license fees are artificially raising the total cost of ownership (TCO) for the Linux platform. It is a "purposeful process" to take away choice by raising the cost of running the Linux platform. OIN is attempting to have the US Congress recognize this and instruct the ITC to allow a parallel District Court process hear the case, as it can make decisions other than just injunctions. Paying some license fee is "not a death knell", Bergelt said, while unfairly high costs are. We want a "yield sign if not a stop sign" to the ITC-ordered injunctions.

Another initiative that OIN is working on with Google and IBM is something that Bergelt is (temporarily) calling "Code Search". It will be a way to search pre-existing code and "unstructured project data" for prior art. It will make existing code searchable and could be used by the patent examiners as well as the community and OIN. There will be an announcement "soon" about that project.

Context

Bergelt then turned to the current patent wars, and what they mean for Linux, especially in the mobile arena. Microsoft has been using 25 patents in its litigation over mobile devices. It is not just selling licenses to smartphone vendors, but is going after the contract manufacturers as well. Both are paying license fees in many cases, so Microsoft is now turning to going after the mobile carriers as well.

There is a strategic agenda at play, he said. In difficult times, companies that appear to be strange bedfellows will come together to attack a rival. The attacks are tightly coordinated and multi-tiered to artificially raise the TCO. Established companies are comfortable with reduced innovation because that means there are fewer threats to their positions.

There are lots of speculators out there who have spent『billions to acquire patents』and expect a return on that investment. But there are also operating companies that are threatened by Linux and open source. He is wondering what will happen with HP's Palm patent portfolio, for example. Patent aggregators are being approached to sell their portfolios to operating companies; those companies may want them for defensive or offensive purposes. In addition, we have seen things like Microsoft's investment that ensured Nokia's relationship with MeeGo ended. Mobile Linux is being attacked from many different directions at this point.

But, efforts like Tizen, webOS, and MeeGo (which is still being used by KDE and others) add resilience to the mobile Linux patent situation. It is much easier for foes of Linux to fight a one front war against Android, rather than have to deal with Tizen, webOS, and MeeGo, he said. He is "very encouraged" to see that there are multiple options for mobile Linux.

There are lots of antagonists lined up against Linux. Some companies are funding patent trolls and providing them with patents to attack other companies. But, so far, we haven't seen funding for direct attacks by patent trolls against Linux, though it could happen. The key is to watch where trolls are using patents from known Linux antagonists, those kinds of attacks could turn to Linux next. There is a lot of litigation activity right now, but he sees things moving in a direction where eventually choice in the market will win out over attempts to artificially raise prices through patent attacks.

Bergelt painted a picture of a complex and active patent attack landscape, particularly against mobile devices. But he also described lots of things that OIN and others are doing to combat those attacks. Reform at the ITC level could effect some major changes to the tactics that are currently being employed, though it is unclear how likely that reform actually is. Until there is some kind of major patent overhaul in the US (and elsewhere, really), the OIN projects and efforts will clearly be needed. Whether they will be enough, eventually, remains to be seen.

Another initiative that OIN is working on with Google and IBM is something that Bergelt is (temporarily) calling "Code Search". It will be a way to search pre-existing code and "unstructured project data" for prior art. It make existing code searchable and could be used by the patent examiners as well as the community and OIN. There will be an announcement "soon" about that project.

It seems a bit strange to be reporting that Google are now working with OIN on a "code search" system, given that they turned off Google Code Search earlier this year.