Why the software world needs a 'no-fly zone' for patents

Now 10 years old, the Open Invention Network protects more than 2,000 software packages

The software industry may be just as notable for its nasty legal battles as for its many useful products, but for the past 10 years, the Open Invention Network has been quietly working to change all that.

Launched back in 2005, the OIN was formed by IBM, Novell, Philips, Red Hat and Sony to create a protected zone of patents around core Linux and open source software technologies -- functionality that's essential for open source projects and companies like OpenStack, Linux, Red Hat, SUSE, Android and Apache.

The idea, essentially, is to acquire patents covering key technologies and license them royalty-free to participating members. In exchange, those participants agree not to assert their own patents against Linux and Linux-related systems and applications within that core area. 

NEC soon came on board, and Google joined in 2013. There are now more than 1,700 participants involved, including major multinational companies and startups. Dropbox, for instance, is a licensee today.

The zone of patent non-aggression has evolved to include more than 2,300 software packages. OIN's patent portfolio now includes more than 1,000 worldwide patents and applications. Equipped with that arsenal, the group has worked behind-the-scenes with partners and legislators to thwart patent aggressors in the hopes of avoiding battles such as the notorious case SCO v. IBM.

Particularly remarkable in these litigious times, it's enjoyed no small measure of success.

The OIN is in large part a defender of the notion of "coopetition," said Keith Bergelt, its CEO.

"What OIN is doing is to take that idea of coopetition, which is inherent in open source software, and say, ok, we're going to determine where we'll collaborate," he said. "With input from the community as to what's core, we make a protected zone where we agree we're not going to sue each other."

Outside that core, though, "the normal rules apply," he added.

The "magic" in the approach is that it allows people of all different backgrounds and mind-sets to come together, he said. "We've created a dynamic where people recognize that we need to collaborate in order to compete effectively."

That necessity reflects a major shift over the last 25 years in how innovation occurs.

"It doesn't happen in silos anymore," Bergelt said. Rather, it's project-based, led by examples such as OpenStack and OpenDaylight.

Along with almost 70 packages from Android, the OIN currently protects about 50 from OpenStack, he said. Google, Red Hat, Novell, SUSE, Tizen, Samsung and Intel are among the project's biggest patent contributors.

The OIN has been gaining an average of two licensees per day over the past two or so years, Bergelt said. Meanwhile, it's intercepted and purchased numerous Linux-related patents from companies including Microsoft -- patents that might otherwise have ended up in the hands of patent trolls.

"We're the whitest of white hats in this area," said Bergelt, who says he once served as a diplomat. "They'd rather sell to us in many ways because we neutralize the patents -- we're not going to sue. It puts us in a unique position."

When licensee companies are at risk of patent litigation, the OIN will sell them patents as protection if it can. The group once did that for Salesforce.com to protect it against Microsoft, he recounted.

"We expect we'll increase that kind of activity over the next 10 years," Bergelt said. "If you look at emerging areas like the cloud, network management, Hadoop and containers, those are the kinds of companies that will likely be flashpoints, so we need to make sure they're armed."

One of OIN's biggest challenges will be convincing more companies to participate. "It's almost a test of authenticity," Bergelt said. "If you're going to participate in the open source community, it's a prophylactic measure to protect you."

Bergelt likens the OIN to the countless forgotten people who made it possible to settle the Wild West of the United States.

"We're a small part of a very big story, and it's important for us to be egoless," he said. "It's like homesteading in this fertile land. We're the nameless agents who provide guardianship while others do the heavy lifting and risk their livelihoods in this area that is open source."

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