Google, business, and open-source patent protection

Google has just pledged that it won't sue other companies over open-source patents if they don't sue Google first, but this is actually a long established policy. Now if it could only stop the patent wars.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

Google's Open Patent Non-Assertion (OPN) Pledge, in which Google promises "not to sue any user, distributor, or developer of open-source software on specified patents, unless first 'attacked", sounds good. Indeed, it is good. But this is far from the first time that Google has made such a pledge. Indeed, open-source companies have long banded together to protect themselves and their patents from outside attackers.

Before Google was sharing patents for open source, the Open Invention Network was there.
Image: OIN

The most important protector of open-source patents is the Open Invention Network (OIN). The OIN was formed in 2005 by IBM, Sony, Philips, Red Hat, and Novell. Google joined the OIN in 2007.

The OIN freely acquires Linux-related patents and then shares them, royalty-free, to any company or organization that agrees not to assert its patents against Linux or its applications. Since then, the OIN has significantly expanded and updated the technologies it covers with its protective network of royalty-free cross-licenses. OIN now also covers patents related to such open-source programs as Kernel Virtual Machine (KVM), Git, OpenJDK, and WebKit.

The OIN is an example of what's called a patent pool or patent commons. They're popular for frenemies so they can work together without friction on intellectual property issues, while still competing in the marketplace. In a business world where companies can waste millions of dollars in patent wars, patent pool arrangements have become increasingly common.

Outside of patent pools, Google is also far from the only company to promise not to use a group of patents against open-source developers. In 2005, IBM pledged the free use of 500 of its patents for the development, distribution, and use of open-source software (PDF Link). Red Hat has made similar promises. And in 2005, Nokia promised not to use its patents against the Linux kernel. Indeed, even Microsoft, when it comes to .NET anyway, has promised not to sue open-source developers.

At the same time, though, patents are still being used by theoretically open-source-friendly companies to try to clobber each other. In the most recent example, Nokia is refusing to license 64 plus patents to Google to cover its open-source VP8 web video codec. This came after Google and MPEG had settled their patent disagreements, which had been keeping VP8 from becoming an internet standard.

So while, in short, I applaud Google for its patent promise, don't think for a moment that we're done with patent wars between major companies or the constant toll on the economy of patent trolls. No, our patent system is still utterly broken. While patent pools; fair, reasonable, and non-discriminatory terms (FRAND) patent policies; and promises to use patents only in defense are all well and good, we're still a long way from having a fair and equitable patent system.

Related stories

Editorial standards