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Google Joins Effort To Ward Off Patent Challenges To Linux

As the 13th member of Open Invention Network, the search vendor will boost the group's stash of patents that serve as ammunition against would-be challengers.

Google is joining IBM and Oracle in rallying around Linux. The company last week joined the Open Invention Network, a group that cross-licenses Linux patents as a means of discouraging infringement challenges to Linux.

Google brings the 2-year-old group's member- ship to 13 companies, with a roster that includes NEC, Novell, Red Hat, and Sony. "This is a way for everyone to get together and look after Linux development," says Chris DiBona, open source programs manager at Google. All Google search engine users are supported by Linux, and the company manages its internal Web indexing and analysis of Web pages with systems running on clusters of Linux servers. "Linux is very important to Google," DiBona says.

Google is the Open Invention Network's first user licensee, the group's CEO, Jerry Rosenthal, says on the network's Web site. It's one of the largest users of Linux, with data centers in New York, Mountain View, Calif., and other locations around the world powering its search engine. Other group members are vendors that run Linux on their products or distribute it as part of their products.

Patent holders typically defend against potential infringement charges by threatening to mount their own case against a would-be challenger. The more patents in an organization's portfolio, the more effectively it will be able to mount a counterchallenge and the better its defense, says Todd McClelland, an attorney with patent law firm Alston & Bird.

Open Invention Network had more than 100 Linux patents included in its cross-licensing agreements before Google joined the group. DiBona couldn't say exactly how many patents Google will add to the portfolio, but he notes that the company has many Linux contributors on staff. Open Invention Network licensees sign a joint cross-licensing agreement and pledge not to try to enforce any Linux patent they may hold against another member. They've also pledged a joint defense if Linux is confronted with a legal challenge.

No patent holder has ever sued Linux develop- ers or a Linux distributor, and none is likely to, Rosenthal asserted when Oracle joined the group in March. A patent challenge to Linux would not only activate defensive agreements such as Open Invention Network's, but it also would prompt large companies with their own large patent holdings to challenge the challenger. Linux is central to the product strategies of Oracle, IBM, and many other companies.

As Open Invention Network shores up its defenses, Microsoft has been signing intellectual property agree-ments with small Linux distribu- tors, such as LG Electronics, Linspire, and Xandros, that say Microsoft won't sue those companies' customers for patent infringement. Microsoft inked a similar deal with Novell last November, but a Novell spokesmen later disavowed that the company supported any assertion that Microsoft intellectual property had found its way into Linux. Dell also has signed an agreement with Microsoft.

After signing the agreement with Novell in November, Microsoft CEO Steve Ballmer asserted the Linux kernel and modules and other open source code offerings contain Microsoft intellectual property. Microsoft chief counsel Brad Smith said in May that the company believes that Linux violates 107 of its patents, and other open source code violates another 128. But neither executive specified any violated patents to give Open Invention Network and other Linux defenders a chance to try out their defenses.

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