Experts welcome bid to protect Linux patents

Recent moves to create an organisation to defend the Linux community from patent infringement cases has been given a cautious welcome by industry analysts.

Gartner said that the newly launched Open Invention Network (OIN) initiative to acquire patents and offer them royalty-free in a bid to promote Linux is laudable, but "only partly addresses the needs of the community".

The analyst firm pointed out that an organisation like OIN with a strong patent portfolio could create a counter-offensive against potential patent infringement claims.

OIN expects to accumulate patents by purchase, auction or donation. It will contractually offer royalty-free usage of its patents to technology suppliers for use in their own products, as long as the patent user makes no future patent infringement claim against Linux and associated software.

"We believe this collaborative environment is likely to free up the flow of technology somewhat, by reducing fears of lawsuits from patent claims," a Gartner advisory stated.

"However, the creation of OIN does not address an issue of great concern to corporate users.

"If an enterprise or a community of open-source software users is sued for using allegedly misappropriated code in a product, the user must possess an indemnification contract asserting a vendor's legal responsibility to defend the user against such infringement, or risk being subjected to the costs of defending against the legal action."

According to Gartner, software patents "pose the single largest threat to the open source software model". Although they protect their owners' intellectual property, they can also create legal barriers to many open source efforts, the analyst firm warned.

"For example, as Linux and Windows edge onto one another's turf, the Linux community will have few defences against the power of Microsoft if it should seek to claim royalties from the use of allegedly misappropriated intellectual property," Gartner stated.

To succeed, Gartner believes that as well as accumulating a large number of patents, the OIN must demonstrate a long-term business model to attract investors.

The Gartner study noted that, although the initial group includes investors from the consumer market, it has failed to attract HP, Intel, AMD, Dell, Sun Microsystems, Fujitsu and Unisys, among others.

The group must also, according to Gartner, clarify how it will differentiate itself from the Open Source Development Lab's (OSDL's) patents common project, which is also reaching out to patent holders, but without mandating an acquisition policy.

OSDL and OIN might benefit from a merger or cross-collaboration, according to the Gartner paper authored by analysts George Weiss and John Enck.

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