The market, not legislators and judges, is best placed to tackle perceived patent problem 14 Feb 13
An article on the CNN Money website looks at how the Open Invention Network has developed since it was founded in 2005. OIN was set up as a defensive patent aggregator on the initiative of IBM – and with the support of Philips, Novell, Red Hat, NEC and Sony - to provide a level of protection for Linux-related open source software, whose health these founders all had quite a stake in ensuring. Coincidentally (or not), it was formed at a time when Microsoft was making increasingly aggressive noises about the ways in which open source software potentially infringed its patents.
Originally run by Jerry Rosenthal, who had been vice-president of IP and licensing at Big Blue, OIN has been overseen by Keith Bergelt since 2008. And in that time it has come a long way: the CNN Money piece reveals that it now has 500 licensees and manages a portfolio of over 600 patents, 75% of which cover the US.
To this day, the article states, OIN is funded by its six founding members, plus two associate members – Google and Canonical. The model is a simple one: companies that join up are licensed to use the patents in the OIN portfolio but must give an undertaking not to sue any fellow licensees for patent infringement in areas that may touch upon Linux-related software. The OIN is also willing to assign patents to members that may wish to use them in counterclaims or, more generally, to deter attacks in the first place. Over the last year, for instance, OIN has assigned rights to both Google and Red Hat. Previously it has also helped out Salesforce.com and TomTom.
What I like most about OIN is that it is a market-based solution to a potential problem that worries its founders and licensees: in what they see as the wrong hands, they believe that patents have the potential to cause open source developers significant problems, even more so when such developers do not have the means to fight back.
As opposed to legislation or even court decisions, which may end up having a detrimental effect on a lot of very innocent bystanders, market-based solutions are attractive because they are devised by people who know precisely what they want to do in order to deal with a specific issue. In the case of OIN or the Twitter IPA or the Defensive Patent License being developed by professors at the legal faculty of Berkeley, say, these may be inspired by business imperatives or as a non-profit response to a perceived problem; alternatively, as is the case with RPX, AST and various crowdsourcing operations such as Article One Partners, they may be established as businesses in their own right.
My guess is that as the patent market continues its rapid development we will see many more of these solution services appear over the coming months and years – each one seeking to deal with a specific issue or targeted at a particular business demographic, and each one set up by people who – unlike the vast majority of legislators and judges - know the patent environment, its perils and its pitfalls intimately. They will offer to deal with challenges and dangers in ways that do not have the potential to cause harm to or to adversely affect the business strategies of the vast majority of businesses in the US and elsewhere which use the patent system (or may wish to do so in the future), but which never get close to either launching or being on the wrong end of legal action. And that, surely, has to be the goal of everyone with a genuine interest in ensuring the best of all possible worlds for the largest number of players in the IP eco-system.
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