Simon Phipps| Infoworld

With the shift to cloud well under way, can we expect to see the same innovation-crushing surge of patent abuse in the field of cloud computing? Given the increasing deal sizes in the cloud space, the move by market leaders to focus on cloud for future growth, and the shortfall of current reform activity to restrict only the most egregious patent trolls (and not those using trolling as a line-of-business within a larger enterprise), it seems foreordained.

Much of cloud computing relies deeply on open source software. So the cloud news from the OIN (Open Invention Network) that broke in December — that Google would join and OIN would cover OpenStack — should come as no surprise.

Why is the attack of the trolls inevitable? First, cloud computing has deep roots in clustering, scientific computing, and data analysis — and those have been favored topics for university research for years. As we discovered from those who opposed the Innovation Act, universities frequently sell patent rights to trolls as they desperately try to make good on their mistaken belief they can make their institutions rich by patenting research. Second, the cloud computing space has been slow to become profitable, and many startups have already come and gone. VCs often insist on startups filing for patents so that there’s something to sell should their investment fail. The trolls lie in wait for these cheap spoils.

As a consequence, it’s highly likely that key cloud computing patents are in the hands of patent trolls from both sources. That’s just the small trolls — the big trolls have cloud computing business units and are sure to already have a patent arsenal.

Problems like these inspired the creation of OIN nearly nine years ago. These days, OIN regularly updates its Linux definitions — the list of packages that the licensee network agrees not to fight over with patents. The updates include packages that are growing in popularity and which OIN has received requests to include in the list.

Linux System” is a specialized term here. It refers to a comprehensive list, not just of the files comprising the Linux kernel, but also the files from the GNU Project and other essential user tools, plus an ever-expanding tally of applications and infrastructure hosted on top of GNU/Linux. You don’t even have to run these applications and tools on Linux to be eligible for protection; the packages themselves are protected. Thus, the patent pool and non-aggression pact have significant effects, due both to the expanding pool of patents owned by OIN and to the increasing community of licensees.

I reported in 2012 on a set of additions that led to OIN members Phillips and Sony limiting their involvement, and updates last year brought on the rapidly growing NoSQL database MongoDB to the definition, as well as much of the Android system and OpenJDK, the open source peer of Java. These latter recruits were serious enough to provoke Oracle into withdrawing. The actions by Oracle, Sony, and Phillips show that the OIN defenses are not just window dressing — they have real consequences.

But these most recent updates are highly significant. As well as adding further growth packages — the new definition includes MariaDB, the popular variant of MySQL — there is also a significant and intentional move into protecting cloud computing. OIN has added the packages from OpenStack to the new definition, which comes into effect on March 6. Given that IBM and Red Hat are both members of OIN and heavily invested in OpenStack, that means the cloud infrastructure project has serious protection from the inevitable patent attacks.

The network has grown too. There are now more than 700 licensees of OIN, each committed to non-aggression with patents against the Linux system and each committed to offer its own patents for the defense of other licensees. In addition, a new full member has joined the OIN team — Google — both offering its full patent portfolio for cross-licensing in defense of Linux and funding the acquisition of key patents for OIN’s own defensive portfolio. It doesn’t seem to be well known, but OIN has acquired an impressive portfolio of patents to prevent them falling into the wrong hands, as well as for use by members and licensees.


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