Software makers and stakeholders are worried about a spate of patent troll litigation emerging in the open source space because of the growing popularity of the system that makes programs openly available to use and develop.
In-house sources from Red Hat, Qualcomm, Unified Patents and the Linux Foundation say the industry has long been fearful that litigious non-practising entities (NPEs) might target open source software, and are now braced for that development because of a new case.
The Gnome Foundation, an organisation that aims to develop a desktop platform based on free software, announced in October that it was being sued by NPE Rothschild Patent Imaging (RPI) for developing the Shotwell, an application for managing images.
RPI filed its action in the Northern District of California over US patent number 9,936,086, which is allegedly infringed by Gnome’s product that, among other things, uses an image-capturing device to perform a method.
Mike Dolan, vice president of strategic programmes at the Linux Foundation, tells Patent Strategy that open software is becoming a larger component of most software projects and is growing every year.
Recent open source activity such as RPI suing Gnome over an open source project, he says, points to the level of indifference inherent in the litigious NPE business model.
“We’ve all witnessed NPE activity targeting software increase over the last decade. Some of that activity has been curbed by decisions such as Alice. But NPEs continue their business model and are often viewed as a tax on the software industry.
“It’s more likely the issue isn’t targeting open source, but as NPEs target software, open source will increasingly be part of the collateral attack surface.”
Kevin Jakel, CEO of Unified Patents, an organisation whose goal is to reduce NPE assertions, adds that open source technology covers lots of different areas, and if assertive NPEs can find a patent that relates to a popular open source technology, they have leverage to sue a lot of people.
“From an NPE perspective, targeting open source is a good idea because it is good for business,” he says.
But not all open source stakeholders agree entirely with this line of thinking. David Marr, vice president and legal counsel at Qualcomm in California, says the recent case is likely to be a one off and that it is important the matter is not used to exaggerate the threat of NPEs – and patent holders broadly – to the open source space.
“We care about this issue and believe that a positive co-existence made between responsible patent holders and the open source community is more than possible,” he says. “Responsible FRAND-focused SEP holders have had a good track record of limiting activity to areas that do not diminish the good motivations surrounding open source.”
Another industry source points out that there will be little incentive to squeeze money out of defendants like Gnome in the future, and as such this litigation is probably an anomaly. Gnome reported just over $1 million annual turnover in 2018, so it is unclear how RPI intends to gain substantial value from its litigation.
The source adds that “unreasonable” cases such as this have been used by software companies in the past to try to weaken the patent system, and he does not want to see the same thing happen in the open source space.
A unified front
To stem this potential onslaught of NPE litigation pre-emptively, Microsoft, IBM, the Linux Foundation and the Open Invention Network (OIN) have teamed up with Unified Patents and are supporting their Open Source Zone with a substantial annual subscription.
In a press release two weeks ago, the OIN said the collaboration was set up to hinder patent troll activities towards open source, such as the recent RPI lawsuit brought against Gnome.
Patrick McBride, senior director of IP at IBM subsidiary Red Hat in the US, says such a collaboration is necessary. “Trolls discourage innovation by making it hard to come up with new features that bring value to customers and end users, and it is not surprising that that would affect open source tech as much a proprietary software.
“It is high time that open source supporters and advocates gathered together to put money on the table and defend the space. I’m excited to see what happens and everyone involved deserves a lot of credit.”
Dolan at the Linux Foundations adds: “We’re very supportive of Unified’s work in their NPE zone for open source. We’ve committed financial resources to enable their work in protecting open source communities and hope to see any interest from litigious NPEs significantly deterred.”
Jakel at Unified Patents tells Patent Strategy that the goal of the alliance is to deter open source litigation, the same as it is for the rest of his organisation’s work.
“Our strategy is what it has been from the beginning: to look at all the activity going on in certain tech areas or zone and take stock of everything, including repeat bad actors.
“We will be taking a look to see if patents asserted hold up to muster, and we have prior art tools and strategies for that that give us the ability to review and challenge patents,” he adds.
McBride at Red Hat says this alliance is likely to grow as more businesses start to see the value of using open source and subsequently the need to deter bad actors from asserting patents that dissuade others from contributing.
“If you look at other initiatives like the OIN, that started with just five members back in 2005. It is now one of the biggest patent non-aggression agreements in the world,” he says.
Open source is becoming a hugely popular resource for traditional software companies and new entrants to the software space around the world.
Stakeholders should be vigilant against litigation in this space – as they would in any other. But in terms of litigation against small foundations, RPI v Gnome may well be a one off.
