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November 10, 2005

Linux vendors begin patent stockpiling

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.

By CBR Staff Writer

The five companies are putting their financial muscle behind Open Invention Network, a new organization that will take a more proactive role in Linux’s patent protection battle by buying up patents and making them available to any company, institution, or individual that agree not to assert its patents against the Linux operating system or certain Linux-related applications.

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 Jerry Rosenthal, chief executive officer at Open Invention Network, and former vice president of IBM’s intellectual property and licensing business.

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.

In January 2005, IBM went a step further as it offered open access to 500 of its patents to create the basis of what it has termed a patent commons. Further patent pledges with varying levels of commitment have subsequently come from Red Hat, Nokia, Computer Associates International, and Sun Microsystems.

There have also been more calls for the creation of a patent commons, with the Open Source Development Labs announcing in January plans for a new initiative that will bring together information for open source developers about patents that have been pledged by vendors to the open source community.

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The patent situation creates something of a dilemma for many open source supporters trying to balance a dislike of software patents with the stark reality of operating in a business environment where their competitors are amassing software patent portfolios that could potentially be used against open source software.

European anti-patent campaigner Florian Mueller has likened the current stockpiling of patents to the cold war, where the only thing that protected one side from the other was the concept of mutually assured destruction.

The formation of OIN suggests that the open source patent stockpiling has begun, but it could also free up open source developers and vendors from having to worry about acquiring potential patents to protect their investments.

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, said Rosenthal.

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