In open source's early days, its main intellectual property (IP) enemy was copyright lawsuits from proprietary companies. They wanted to squash open-source projects before they could become deadly rivals. The most famous example of this was with the Microsoft-sponsored SCO vs IBM and related companies' Linux lawsuits. Linux's allies won those lawsuits. And all was peaceful with open-source software. That was then. This is now. Today, patent trolls are increasingly a threat to open-source software developers.
You see, open source is more successful than ever. Even Microsoft has seen the error of its way and now supports both Linux and open source. That's the good news. The bad news is because of its success, patent trolls -- also known as Patent Assertion Entities (PAE) -- are attacking its beneficiaries more than ever. The recent UnifiedPatents, Defending Open Source: An 2022 Litigation Update, report shows patent troll attacks on open-source projects are on track for a 100% increase over 2021.
To be precise, halfway through the year, as of June 6, patent attacks on open-source projects by trolls have already equaled the total for 2021. Of these attacks, the top 10 attackers include some of the best-known trolls.
You see, patent trolls are a big business in their own right. The troll doesn't have to prove intent or provide the defendant with any notice prior to filing a lawsuit. The costs to filing such suits are low and the profits are high.
Keith Bergelt, CEO of Open Invention Network (OIN) -- the world's largest patent non-aggression consortium-- also pointed out, "The most sophisticated and compelling global banking and fintech companies have essentially become technology companies that employ open-source software to deliver their services at scale." He also said that patent trolls "appear to be targeting them for this reason, along with the fact that financial services companies have not historically been active patent filers."
Once armed with software patents, the trolls look for companies with successful commercial programs or use open-source software. They then claim that the profitable software violated their patent and, therefore, the business or group owes them money. There doesn't need to be any proof whatsoever that the developers knew about the patent, never mind whether they used it in their work. This operates because some courts, such as the U.S. District Court of Eastern Texas, will rubber stamp patent lawsuits. The trolls, of course, shop their lawsuits around to the friendly courts.
It also doesn't help one darn bit as Federal Circuit Court of Appeals Judge Pauline Newman said, "The court's rulings on patent eligibility have become so diverse and unpredictable as to have a serious effect on the innovation incentive in all fields of technology. The victim is not only this inventor …; the victims are the national interest in an innovative industrial economy and the public interest in the fruits of technological advance."
Then, the trolls will demand payment for the use of their patent "work." Financially, it often works because it's cheaper to pay than to fight.
They're also hard to fight because, believe it or not, it's almost impossible to find out who actually owns a patent. Patent trolls often hide behind Limited License Corporations (LLCs), which change their names more easily than you can change your socks.
So, today, 71% of all patent cases asserted against open-source products are brought by trolls. Rather than going for small companies that can't afford to fight, the most targeted companies today are well-known technology corporations such as Google, Samsung, and Apple. True, the risk is great that they'll lose or won't get paid, but the rewards can be enormous.
To fight them, groups such as Unified Patents, a consortium of companies fighting the trolls, use an invalidation defense. With this approach, their lawyers and developers seek to show that the patent was garbage to begin with. Many software patents, which are granted by the US Patent and Trademark Office (PTO), should never have been approved in the first place. The result? Unified Patents has had a success rate of nearly 90% in its Open Source Zone.
Other efforts are led by the OIN. With its huge patent portfolio, the OIN is most effective against real patent attackers rather than trolls. Still, it's also been successful against trolls as well. The most well-known recent example was when the OIN helped the GNOME Foundation win against a troll.
The Open Source Initiative (OSI) is also taking up its sword and shield against trolls. Simon Phipps, the OSI's Standards and Policy Director, said:
It's sad that patent mercenaries are willing to attack community activities. I fear that we may see further weaponization of patents in the service of other agendas -- for example, in the evolving conflict between old consumer electronics and telephone companies and newer businesses who are hampered by so-called "Standard-Essential Patents." We are well overdue for meaningful reforms in patent usage in Europe and the US so that open-source communities can make the world better without attempted taxation by the old guard.
Stay tuned. It will be a long and bitter fight between the trolls and open source's defenders. Before it's over, it may look like the long and slow SCO vs the Linux world lawsuits look speedy.