November 15, 2005

OSDL lassos patent pledges online

Author: Jay Lyman

Open source software developers and users can now check the detail and depth of patent pledges from the likes of Red Hat, IBM, and Sun through a new Patent Commons site from the Open Source Development Labs (OSDL).

The site, which goes live today, serves as a central location for information on specific patents that their owners have made available, as well as intellectual property within patent portfolios that are made available on a larger scale, and other related information.

The site will also serve as a check on promised intellectual property (IP) from technology giants. After having amassed huge patent holdings and profiting from them over the years, these companies are often seen to be freeing code with little value to the company or community when they make the pledges.

"The assumption was IBM would dump stuff into the market that wasn't worth anything," said IBM vice president of intellectual property and standards Jim Stallings, referring to IBM's original pledge of 500 patents last January. "The great thing with the site is you can go look at the patents. You can investigate what it is, then you can make the declaration if it's good or not."

Heading off a patent thicket

OSDL general counsel Diane Peters said the site, announced last August, is split into two main components: an online library of both numbered patents and broader patent portfolio pledges; and an assembly of resources for developers that lays out the parameters of patent commitments, including termination provisions and other guidance on using the committed IP. The library is subdivided into five searchable databases: a listing of contributing companies, currently at seven; the commitments, pledges, or covenants from those companies; specifically identified patents; less specific pledges on standard technologies or patent portfolios; and other legal solutions of interest to site users, including indemnifications, open source license provisions, and IP rights and policies from standards bodies.

OSDL said it hopes the site will expand beyond the companies that have already pledged patents to include others, including government agencies. Peters also said OSDL is working to include colleges and universities, but that those institutions were struggling with supporting their own innovation and sustaining research.

Peters, who said the site has been welcomed by kernel developers at OSDL, indicated the library serves as a central location for the growing number of patent pledges that started with a promise from Red Hat in 2002.

"We determined there needed to be a central location where these could be aggregated and centralized in an easy-to-use format, so users and developers could use the patents and rely on the promises safely," she said.

Red Hat senior vice president Mark Webbink said since his company's patent promise, a number of others, including IBM, Nokia, and Novell, had made similar patent pledges, vowing not to enforce certain patents against Linux or open source.

"It's not a single thing -- it's a multitude of things to ensure open source software can be developed without fear of patents," Webbink said, also referring to the Fedora Foundation and the recently announced Open Invention Network, a new company formed by IBM, Novell, Philips, Red Hat, and Sony that will acquire patents and license them royalty-free to others who agree not to assert their patents against Linux.

IBM's Stallings said the Patent Commons site was needed for developers to take advantage of the growing number of patents pledged by companies, which also include Computer Associates, Ericsson, Intel, and others.

"It's sort of been a dizzying array of different types and structures," he said of the pledges.

Peters said OSDL was looking to avoid the problems that the open source licensing community has had with proliferation when it comes to patents and IP promised to the community.

"We're seeing a growing body of patents and pledges," she said. "We wanted one location to avoid a pledge thicket around the commons."

Value of patents and site

Open source licensing and legal expert Larry Rosen said although its value may not be exhibited until patents are asserted against open source, the new patent site would help shed light on the confusing and confounding issue of software patents.

"I'm not opposed to anything that provides more information, particularly in an area which causes so much confusion and angst," Rosen said.

However, Rosen voiced some skepticism over patent pledges from the big technology companies, indicating IBM's 500 patent pledge last January, for example, had little meaning for open source developers and was perceived as an attempt by IBM to get to a high number.

"The other point I would make is, most patents are not very useful," Rosen added. "Most are not going to be enforced, or they're easy to design around. The real test will come when patents are asserted against open source and the Patent Commons will be used as a defensive weapon."

Still, Rosen said just as there is a perceived advantage to having a large collection of patents in the industry, the Patent Commons -- which lists more than 500 specifically identified patents -- serves as a psychological and potentially valuable weapon for the open source community.

Making the pledge

Red Hat's Webbink said his company's patent pledges back up the vendor's position that software patents are a danger to open source.

"We've been vocal in saying that patents are pernicious and harmful to the industry," he said. "But they're the world we live in and we are not going to get rid of them anytime soon. We recognize we have a responsibility to the community and our shareholders to pursue patents," he added, stressing Red Hat's use of "restrictive or protective open source licenses" that maintain openness.

Referring to Linux software design patents, kernel development patents, TUX Content Accelerator, and Exec shield security software, Webbink said all had been made available to open source users and developers without fear of any IP reprisal through Red Hat's patent promises.

Webbink said Red Hat's large customers will also be particularly interested in the Patent Commons site "because the greater volume you have, the bigger target you become."

Stallings said IBM's patent pledges, and others, will be easier to access and use with the commons site. Although he indicated IBM will "still amass" patents and will proclaim again next January that it is far and away the leader among US patent holders, the company sees the patent pledges as another way it can support the open source community.

"We're peeling off a piece of our own portfolio and saying take this, and with these other things, you can create," he said. "We also realize the next wave of innovation will be driven by collaboration, open source, and standards. It's going to drive something bigger. Because we've got inventions and patents, we can pledge those things."

Stallings said the patent commons site demonstrates the maturity of the industry and open source, and is likely to see solid use by open source developers. "This will be the platform where they'll do their early, early searches for IP."


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