​What's the deal with Microsoft's open-source friendly patents?

In the aftermath of Microsoft joining the Open Invention Network Linux-friendly patent consortium, many questions remained, and at Open Source Summit Europe, some of them were answered.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

By joining the Open Invention Network (OIN), Microsoft is offering its entire patent portfolio to the open-source patent consortium's members. Immediately after the announcement, people asked: "Entire? Everything? Even [patent name]?"

At a keynote speech at Open Source Summit Europe in Scotland, Keith Bergelt, OIN's CEO, answered some of these questions. Later, in an interview with Bergelt and the OIN Linux System Definition director Mirko Boehm, more questions were answered.

Why Microsoft joined OIN

The answer, according to Bergelt, is simple: Open source.

During a Open Source Summit Europe keynote, Stephen Walli, Microsoft's principal program manager for Azure, explained:

"Open source changed everything. Customers have changed. Fifteen years ago, a CIO would have said, 'we have no open source, they would have been wrong, but that's what they thought.' Now, CIOs know open source's essential. . .

Microsoft has always been a company by, of, and for developers. At this point in history, developers love open source."

Walli knows some people are worried that Steve Ballmer will return with his "Linux is cancer" rhetoric. But Ballmer's not coming back. Walli even quoted Microsoft's current CEO, Satya Nadella, "'Judge us by the action we have taken in the recent past, our actions today, and in the future.'"

And that includes how Microsoft is dealing with patents.

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What we're seeing now

Microsoft's embrace of an open-source friendly patent approach is not a sudden move. The effort goes back as far as May 21, 2008, Bergelt said, because "people inside Microsoft were pushing for open source." He continued, "I've been talking to Microsoft for nine years, and for the last three years, we've been in productive talks with Microsoft."

Keith Bergelt, OIN's CEO. (Image: OIN)

What we're seeing now is "a new world order with smart, creative people creating innovation at Microsoft with open source," Bergelt said.

What's happening now, Bergelt explained, is that legal development and collaboration are catching up with technical development and collaboration. They're now happening in parallel.

OIN's mission, Bergelt said, is to enable freedom of action and operation for vendors and users of Linux open-source technology. It does this through a patent non-aggression pact and licensing around the Linux system

What is the Linux System?

According to Bergelt:

"It's the core, well-known packages in Linux. On a minimum install of Debian Linux, all 2,800 standard packages should be in the Linux System. It's everything you need to create products. It also includes OpenStack's core programs, Kubernetes, Apache web server, and other vital open-source programs. The next update will bring in the Automotive Grade Linux (AGL) patents."

In short, "it's the building blocks." For the complete current software list, see the Linux System tables.

What about specific Microsoft patents?

Were some kept out? No.

"All of Microsoft's patents," said Bergelt, "are covered by the OIN license. There were no exceptions. The license is the license."

OIN Linux System Definition director Mirko Boehm (Image: OIN)

Boehm added, "Microsoft is unique, but they're not getting special treatment."

Yes, the OIN protection almost certainly covers Microsoft's exFAT patents. Boehm won't say it's 100 percent, because "there is no exFAT implementation in the kernel."

But, he said, "we're 99.9 percent sure exFAT because the functionality is already in the file systems we know are covered, so we can safely assume exFAT is covered."

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That's not to say you can run out and build an exFAT-based file system for your USB-drive tomorrow with no consequences. Only OIN members have a non-aggression pact with Microsoft. If you're not a member of the OIN, you still must license exFAT from Microsoft.

But there's nothing special about exFAT. The same is true of any Microsoft patented technology. If you're not an OIN member, you're not covered by its patent-protection pool.

Some people may ask, "Why is it so hard to say this patent is OK for this program?" But that's based on a fundamental misunderstanding of how software patents work. They describe a high-level view of how a program does a task.

"There is no one to one match between code and patent," Boehm explained.

Additionally, if your program isn't open-source or falls outside the Linux System definition, you're not covered. For example, Microsoft has over 40 blockchain patents. None of those are actively covered by the OIN because blockchain isn't part of the Linux System. Yet.

Boehm said that, in a few years, the open-source Hyperledger blockchain will probably become part of the Linux System. But, until that happens, all the OIN members' blockchain patents are, practically speaking, outside the patent pool.

Join the OIN

You can, Boehm would like to remind you, join the OIN. Your organization doesn't need to own patents. Joining is free. If you do hold patents, you must, of course, live up to the OIN's license agreements. That's not to be done lightly. At the least, you should have your attornyes look carefully at what joining the OIN will entail.

That said, the benefits of joining are also clear: There's safety in numbers, and with Microsoft on board, the OIN is now unquestionably the largest patent protection consortium of them all.

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