In a significant change in posture, the Open Invention Network (OIN) has announced that it is joining IBM, Microsoft and the Linux Foundation to become a founder member of Unified Patents’ new open source zone. The move, which was revealed today, is a signal that the Linux community believes it faces a growing threat from NPEs and reduced risk from operating companies.

Since OIN was established in 2005 it has become one of the leading defensive aggregators, buying patents that are deemed to threaten the open source Linux kernel. By joining Unified, which has been one of the most frequent filers of inter partes reviews (IPRs) in recent years, the network has signaled that it is no longer merely interested in operating defensively. 

The announcement also follows Microsoft’s decision to join OIN last October. This removed what had arguably once been the greatest IP threat to Linux. The software giant’s move prompted OIN CEO Keith Bergelt to reconsider how the network could continue to fulfill its mission to protect the Linux kernel from patent risk. "It allowed us to think about how we wanted to re-position ourselves for the future to have the most significant impact possible,” Bergelt says. 

According to the OIN CEO, of the $100 million that the network has spent over the years on acquiring patents that pose a threat to Linux, around 15% has been focused on tackling assets that were deemed likely to fall into the hands of NPEs. So the risk that the network is looking to mitigate now is not exactly new. However, as the operating company threat has faded, Bergelt and his team have sought new ways to protect the Linux world from assertions. 

That led the quartet to Unified, an entity which has made a name for itself by filing IPRs against what it perceives to be poor quality patents that threaten specific sectors or, as they refer to them, zones. Bergelt pinpointed Unified’s professionalism and track record in identifying and understanding risk as key reasons to join the new initiative.

The news also represents a significant step for IBM and Microsoft. Before today, neither had signed up as members of any other of Unified’s zones. Earlier this summer, though, Big Blue closed its acquisition of open source leader Red Hat and, as a founding member of OIN, has long backed attempts to protect the software space from patent threats. For Microsoft it’s another step in its evolution to becoming a staunch supporter of the open source world.

But just how big a risk do NPEs pose the open source community? Well, although Unified’s data shows that it is growing, ultimately the answer is not much of one. The number of district court cases involving open source projects has roughly doubled since 2014 - but with 49 new suits filed in 2018 levels of litigation are relatively low. Compared to the threats faced by other Unified zones, such as auto, mobile and retail, the threat is minimal.

As Bergelt points out, however, beyond the giants of the software space there are plenty of new open source projects or communities that may not have much experience handling patent assertions. They could therefore benefit from the new Unified initiative.    

A September suit from serial patent litigant Rothschild Patent Imaging LLC against the GNOME Foundation has attracted plenty of headlines as well as a promise from the open source non-profit organisation to fight the claim despite an offer to settle for a “high five-figure amount”.  

“It’s the first time a free software project has been targeted in this way but we worry it won’t be the last,” GNOME said in a statement it released last month.

While the Unified initiative will be focused on using data to highlight the looming threat and on knocking out poor quality patents, there are those grants that fall into the hands of assertion entities that are of good enough quality to survive an IPR. Some of these OIN can look to acquire itself through its legacy buying programme, but Bergelt also revealed that he has had discussions “with entities like RPX” to better address the problems posed by assets that may not be easily invalidated. “There maybe PAEs where you will have to collectivise or syndicate the purchase of assets to reduce risk,” he comments.    

Bergelt added that OIN is also closely monitoring copyright threats and has allocated capital to address possible risk in that space. “I would say that now it’s a very low-level risk but at the same time we want to ensure that we’re aware of it, we're monitoring it and we’re prepared should we start to see troubling behaviour that threatens the open source community,” he remarks. 

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