Although there's been no major intellectual-property challenge to the growth of open source since The SCO Group's still-unresolved multi-billion-dollar lawsuit against IBM a few years ago, several of open source's largest proponents have banded together to ensure that software patent owners won't try to take the wind out of Linux's sails. IBM
, Red Hat
, and Sony
this week launched the Open Invention Network, a company that plans to buy up patents to any technologies its members don't already own and that would benefit the Linux movement. In return, the new company will offer its technology royalty-free to any users who agree not to claim that Linux is infringing their own patent rights.The arrangement will be mutually beneficial to companies that want to see Linux grow unfettered by concerns that there may or may not be code included in the operating system that has no right to be there. Such concerns are raised from time to time not only by SCO Group
but also by members of the open source community. Mitch Kapor
, founder and chair of the Open Source Applications Foundation as well as the founder of Lotus Development Corp., earlier this year expressed concern that a proliferation of poorly researched patents could let vendors such as Microsoft launch the equivalent of a "patent WMD" where technology users are caught between implementing technology at the risk of costly litigation and taking a pass on potentially useful technology. Microsoft
likes to perpetuate this notion, although it has yet to act on it.
Open Invention Network is headed by CEO Gerald Rosenthal, a former VP of IBMâ€™s Intellectual Property and Licensing business. The company's portfolio already includes a set of business-to-business electronic commerce patents that were purchased from Commerce One by JGR Acquisitions, a subsidiary of Novell.
Still, the move to create the new company raises as many questions as it answers, says Laura DiDio, a Yankee Group research fellow. The company does mitigate the risk of potential patent infringement lawsuits against Linux vendors and users, but it doesn't provide protection from infringement claims against patents Open Invention Network doesn't own. "We also don't know all of the patents the company has or how well funded it is," she adds. "All you need is one successful suit against Linux for the game to change."
Perhaps the greatest benefit of Open Invention Network is that it will offer small ISVs access to patents that they otherwise couldn't afford. But let's not confuse the new company with the Red Cross, the Salvation Army, or Mother Theresa, DiDio reminded me. The Open Invention Network is in business to make money off of Linux's popularity. The companies behind the new company are looking to create a common pool of patents to fuel the continued growth of Linux and deliver profits back to the hardware and software markets where they play.