Technology changed forever when Microsoft opened its patents by joining the Open Invention Network (OIN). The traditional enemy of all things open source is now not just using or contributing to open source, it's allowing other OIN members to use its 60,000 patent portfolio royalty free on the Linux system. Moreover, it's enabling its OIN brothers and sisters to use these patents to defend against patent trolls.
Must read: Microsoft open-sources its patent portfolio
What does that really mean?
Let's take a look...
Before going further, let me say: I am not a lawyer. Heck, I'm not even my old friend Groklaw's Pamela "PJ" Jones. But I have spoken to numerous intellectual property (IP) attorneys, and this is the gist of what the deal means. For real advice, though, consult your IP-savvy lawyer.
First, all -- yes, all -- of Microsoft's patents are covered by the OIN deal. Microsoft has licensed its entire patent portfolio to OIN licensees covering the Linux System. Yes, Microsoft has 90,000 total patents, but only 60,000 have been approved to date. The 30,000 remaining are still making their way through the Patent and Trademark Office. As to-be-issued patents, these cannot be asserted. Once they are issued, Microsoft intends to license those, as well.
So, for example, does this mean the Microsoft-OIN arrangement cover patents pertaining to the File Allocation Table (FAT), Extended FAT (ExFAT), and Virtual (VFAT)? Erich Andersen, Microsoft's corporate vice president and chief intellectual property (IP) counsel, replied: "We're licensing all patents we own that read on the 'Linux system.'"
What is the Linux system?
The OIN defines the Linux system covering the Linux kernel and many other open-source packages, which are broadly thought of as part of Linux.
Specifically, OIN stated:
The 'Linux System' shall mean a Linux Environment Component or any combination of such components to the extent each such component is (i) generally available under an Open Source License or in the public domain (and the source code for such component is generally available) and (ii) Distributed with, or for use with, the Linux Kernel (or is the Linux Kernel).
But, the OIN patent consortium also protects other open-source programs that are not commonly thought of as part of Linux. For example, open-source software that runs on top of Linux may be protected. If you're not sure, have your IP attorney check with the OIN to see if it's covered.
For Linux System technologies, Microsoft grants royalty-free patent licenses to OIN and to other OIN licensees. In return, Microsoft receives royalty-free patent licenses from the thousands of other OIN licensees. OIN also grants royalty-free and field-of-use unrestricted licenses for all OIN owned patents and patent applications to Microsoft.
Can you now use Microsoft-patented technology in your open-source program?
Maybe. Are you a member of the OIN? If so, the answer is probably yes. But, as Keith Bergelt, OIN's CEO, remarked, "Microsoft is still free to sue organizations that are not part of the OIN."
What if you already have a patent deal with Microsoft?
It's still in place.
Microsoft joining the OIN doesn't change that -- whether your company is an OIN member or not. If, say, your company, GreatAndroidPhones, made an Android patent contract with a 10-year royalty payout in 2017, you're still on the hook. You can, of course, talk to Microsoft about renegotiating that contract. If you're an OIN member, you may have a decent chance of making a new arrangement.
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