Defend your business from patent attacks

The patent wars are in full swing. Software developers everywhere are keeping their heads low, hoping they won’t be called out of the trenches as software giants like Nokia and Oracle load their litigation weapons with their accumulated ammo and take aim at the innovators eroding their markets. It’s not just the big corporations, either. As Bill Snyder explained yesterday, the patent trolls are back, and they’re after you. How can any small or medium-sized business hope to survive these hostilities?

Now may be the time to take a second look at the Open Invention Network (OIN), especially in the light of their new moves into defensive publication. I’ve been surprised by how few open source technologists are familiar with OIN, so a refresher is in order.

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Open Invention Network LLC is an unusual company. While it has the outward appearance of a law firm or of the sort of shell company patent trolls use, it actually serves as a living research lab for ways of protecting the open source community from software patents.

Based on a sound principle embodied in the Constitution — to regulate the exploitation of creative acts so that their creators will feel safe sharing their know-how with society rather than exploit it alone in fearful secrecy — the implementation of that principle has run out of control, under conditions that could not have been foreseen in the ’40s and ’50s when it was last adjusted to cope with the industrial boom triggered by World War II.

Today, due to a perfect storm of new potential to game the system provided by case law, a rate of technological progress that significantly outpaces the timebase of the system, and an economic situation that makes business models of thinly veiled extortion seem acceptable, a new interpretation of the original constitutional mandate appears to be long overdue. Patches like the SHIELD Act are good, but insufficient.

Open source licenses exist in another part of that constitutionally inspired area of state monopolies: copyright. Since all code is automatically the property of its author — who thus gains draconian powers against anyone who uses it — a copyright license is absolutely essential to any user. The genius of open source is to use this necessity to promote collaboration rather than to inhibit it. This is done by creating a set of elegantly simple liberties that all can enjoy and use as the context of innovation.

OIN takes that inventive leverage of a broken system into a new domain: patents. From its inception, OIN has engaged in patent pooling and cross-licensing. OIN intervenes in patent sales and uses funds from its large corporate members to buy patents that may endanger the Linux system, creating a pool of patents that relate strongly to open source technologies. Those patents are then made available for self-defense by anyone who signs a cross-licensing agreement and commits not to initiate patent action against infringements of their own patents by software in the Linux system.

“Linux system” is a specialized term here. It refers to a comprehensive list, not just of the files comprising the Linux kernel, but also the files from the GNU Project and other essential user tools, plus an ever-expanding tally of applications and infrastructure hosted on top of GNU/Linux. Thus, the patent pool and non-aggression pact have significant effects, due both to the expanding pool of patents owned by OIN and to the increasing community of licensees.

OIN recognizes that obtaining patents that are effective globally is a complex and costly exercise beyond the resources of most open source developers. Thus, it has helped establish a third defense. Patent actions can be neutralized by identifying “prior art” — publication or public use of techniques dating from before the patent application. Identifying prior art that was not declared in the patent application often invalidates a patent grant. Indeed, this was how Google virtually eliminated Oracle’s attack against Android, and it’s the first line of defense against Nokia’s attack on the VP8 video format.

To help build a wall of prior art around the Linux system, OIN coordinates Linux Defenders, an initiative to encourage publication of innovation by software developers in places easily discovered by patent examiners and by companies defending themselves against patent aggression. Defensive publication means taking the ideas around which patents would have been written and formally publishing them instead. Doing so is far easier — and cheaper — than filing for a patent. While filing for a patent creates another bullet to be sold with your company when you exit (or shut down), publishing just creates prior art and robs future trolls of easy pickings in fire sales.

Should your company join OIN? I always recommend it to my clients, and I just added my own new company as a licensee. It’s true that patent self-defense is a rich man’s game, but it costs nothing to join, adds you to a long list of companies committed to defense rather than aggression (more than 500 now), and one day could prove to be the crucial support you need. If you have no plans to attack the Linux system, what do you have to lose? Tell them I sent you!

This article, “Defend your business from patent attacks,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, followInfoWorld.com on Twitter.