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Understanding the Open Invention Network

What OIN does, and doesn't, mean for members

By Joe Brockmeier on Mon, 12/27/10 - 4:09pm.

A couple of weeks ago I wrote about the CPTN gang that's buying Novell's patents and speculated that it might be a Google they're after. Whether Google or another company, a few folks have commented that the Open Invention Network (OIN) can protect members against patent threats from other OIN members. When it comes to Linux, that's true. When it comes to other things? Not so much.

After seeing comments about OIN and talking to other FOSS folks, I realized many folks (including yours truly) weren't entirely clear on what OIN does and doesn't protect. Specifically, there seemed to be an idea that OIN covers a lot more than Linux, or anything that's open source, or anything between member companies.

So I started combing through the OIN Web site and pinged OIN CEO Keith Bergelt. According to Bergelt, OIN holds a number of patents and its members "agree to a cross license of all of their patents for making, having made, using, importing, and distributing any Linux System."

What's a Linux system? That could be fairly expansive given that Linux runs everything from Amazon's Kindle (Amazon isn't a licensee) to the servers that power Google (Google is a licensee). The definition is up on the OIN site and includes a specific list of packages as well as a list of audio, video, and still picture codecs that are expressly covered. Anything else? Well, if it's not on the list or encompassed by the definition, it's fair game for patent suits.

If you're concerned about patents from Novell, it's true that now would be a good time to join OIN. As Bergelt points out, even if CPTN turns out to be hostile, any OIN licensee prior to the closing of the sale is protected in perpetuity.

Even upon a sale of Novell and its patents to Attachmate/CPTN Holdings, the license to the relevant Novell patents remains in force for all pre-existing members/licensees. If you are a member/licensee of OIN prior to the closing on the Attachmate/CPTN deal, then, you are covered in perpetuity on all relevant Novell patents. The proposed closing date is January 23rd, so you still have time to sign an OIN license and get the benefit of the license to those patents.

But Google, or other companies, still have to worry about Novell patents that don't relate to "the Linux system," or that involve proprietary software. Bergelt confirmed, "it is not prohibited for licensees to file patent infringement claims or file patent infringement suits on technologies that are not specifically covered by OIN’s Linux System definition." So things like Google Docs, Google AdWords, Android, etc., are all fair game. Of course, we already knew that — Oracle and Google are OIN members, yet Oracle is suing Google over Dalvik in Android.

OIN, in other words, isn't a magic bullet for companies that are doing business on top of Linux. It doesn't protect software outside the definition of "a Linux system," and it doesn't protect proprietary software. No doubt the companies and organizations joining OIN already have a good understanding of what OIN does and doesn't protect — but there does seem to be confusion outside OIN just how far the patents go.

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