Open Source Zone grinds away at patent trolls

Unified Patents, Microsoft, the Linux Foundation, and Open Invention Network are beating back open-source patent trolls.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

Patent trolls, aka Patent Assertion Entities (PAE)s, have plagued open-source software for ages. Over the years though, other groups have risen up to keep them from stealing from the companies and organizations that actually use patents' intellectual property (IP). One such group, Unified Patents, an international organization of over 200 businesses, has been winning for the last two years. This is their story to date.

Unified Patents brings the fight to the trolls. It deters patent trolls from attacking its members by making it too expensive for the troll to win. The group does this by examining troll patents and their activities in various technology sectors (Zones). The Unified Patents Open Source Software Zone (OSS Zone) is the newest of these Zones

Most patent threats, 80% according to Unified Patents, come from trolls. The attacks keep mounting up. The reason is simple. It's profitable. Besides going after big businesses, patent trolls now go after small businesses that don't have the resources to fight them up. It's cheaper for them to pay IP blackmail than to battle them in court.

In particular, troll litigation towards open-source programs has reached an all-time high of 721 cases in 2021. This is a nearly 22% increase from 2020. These PAEs include Sound View, Sockeye Licensing, St. Luke, MicroPairing, Level 3, Finjan, WSOU Investments, and Unilco 2017. 

The names change but the game is always the same. Buy out patents, wait for someone to use their ideas to make a profitable program, and then sue. Ka-ching!

Even before OSS Zone was formally launched, Unified Patents along with the Open Invention Network (OIN), the world's largest patent non-aggression group, launched legal cases against poor quality PAE-owned patents. The Linux Foundation and Microsoft have teamed up with OIN in support of OSS Zone to battle these bad patents. 

Why is Microsoft involved? Burton Davis, Microsoft's VP and Deputy General Counsel, explained, "Microsoft is committed to open source, and continues to invest and collaborate across the broad open-source landscape. As a beneficiary and active participant in the open-source ecosystem, Microsoft is committed to doing its part, together with the broader open-source community, to protect this valuable resource from patent risk and other challenges."

Besides, Burton continued, patent trolls and their "low-quality patents continue to be a drain on innovation in the software industry and a threat to open source. Microsoft is committed to doing what it can to protect open-source from patent threats and to prevent low-quality patents from harming innovation." Patent trolls hurt everyone who makes software, not just open-source developers. 

This is not just a fight for big companies. Unified Patents also encourages developers and researchers to hunt down prior art to break bad patents. Successful searches earn their winners $2,000. 

This is very useful work. As Linux Foundation Executive Director Jim Zemlin, explained, "This is a useful path when the claimed invention was already in the prior art as evidenced in existing patents, code made publicly available in open-source repositories, or printed publications that were available at the time a patent was in process. It's essentially a review of whether something material was missed by the examiner who allowed the patent to be granted as a new invention." 

Together, Unified Patents uses open-source software evidence as proof to establish that the trolls often don't have a case. This is done using Inter Partes Review (IPR), a 2012 legal tool for showing that a bad patent never should have been granted in the first place. Zemlin notes, "The Patent Trial and Appeal Board (PTAB)'s discretionary rulings on IPRs have changed the landscape around NPEs. These cases take a long time to be resolved. Typically, it takes from 12 to 24 months. 

That also makes them expensive for both the OSS Zone and the trolls. Keith Bergelt, the OIN's CEO, said "In other technology areas when patents go through the IPR process or are reexamined, there is a settlement around 20% of the time.  In the OSS Zone, there are few settlements.  This makes it more costly and difficult to administer, but also is difficult on the PAEs.  When the success rate against their patents is over 95%, certain PAEs that would otherwise hope to settle have essentially given up on defending their patents." Still, with such a high success rate, it's worth the expense. 

To date, Unified has overseen and managed 43 challenges. Of these, 12 patents were found invalid, another 23 cases have been instituted, and six are still in process.  This has led to multiple settlements for Unified Patents members. These, in turn directly pass through to OIN's 3,600+ community members. 

For example, an Accelerated Memory Tech patent 6,513,062, was used by the troll IP Investments Group to claim that the open-source Redis, which manages cache resources on the cloud, violated the patent. Redis, not having any money, IP Investments Group instead went after Hulu, Citrix Systems, Barracuda Networks, Kemp Technologies, and F5 Networks for their use of Redis software. IP Investments Group gave up rather than fighting it out. Everyone who uses Redis wins. 

It's one small victory, but that's how the patent troll wars are won. And, with the Unified Patents' high-success rate in knocking out bad patents, slowly but surely the patent trolls are being driven back from not only open-source software but all software.

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