[A2k] Wall Street Journal: Firms Aim to Ease Patent Risks for Linux Users

[Thiru Balasubramaniam]

     * TECHNOLOGY
     * DECEMBER 9, 2008

Firms Aim to Ease Patent Risks for Linux Users



By DON CLARK

Companies are stepping up efforts to head off patent problems that
could hinder the adoption of new technologies.

The Open Invention Network, a group whose backers include
International Business Machines Corp. and Red Hat Inc., on Tuesday is
expected to expand efforts to ease legal risks for users of Linux and
other open-source software products.

The group, which began purchasing patents in 2005, now plans to
encourage programmers to publish inventions that could help
threatening patents from being issued, or get existing patents thrown
out.

Meanwhile, a nonprofit group that sets technology standards --
originally called Institute of Electrical and Electronics Engineers,
and now simply IEEE -- said Monday it will team up with a unit of
Dolby Laboratories Inc. to encourage companies to pool their patents
covering specific technologies and license them as a group. Such
patent pools, as they are called, are designed to make it simpler and
less expensive to license patents.

The announcements are the latest in a series of responses to a rash of
patent litigation, which has triggered big judgments and costly
settlements. Another factor is the rise of companies -- sometimes
disparaged as "patent trolls" -- that buy up and enforce patents
rather than selling products using them.

One strategy has been for companies to fund groups to buy patents to
keep them from the hands of potential aggressors. New ventures taking
that approach include Allied Security Trust, a nonprofit, and RPX Corp.

Fears of patent litigation have been a particularly hot topic among
promoters of open-source software, which is shaped by groups of
programmers who are allowed to modify the instructions used to create
products. They were a key motivation for the creation of the Open
Invention Network, whose other backers include Sony Corp., NEC Corp.
and Philips Electronics N.V. The organization has already acquired 132
patents, said Keith Bergelt, its chief executive officer. Sources
include failing start-ups, which often hold patents or have invented
technologies that could be patented in the future, he said.

The organization's latest effort, dubbed Linux Defenders, stems from
the fact that public disclosure of inventions -- sometimes called
prior art -- is examined by the U.S. Trademark and Patent Office in
deciding whether a patent should be issued. Prior art also can be used
in trying to persuade the agency to invalidate existing patents.

Open Invention Network plans to solicit inventions and help inventors
publish descriptions of them, which could be used by the patent office
and lawyers to help study the merits of existing or proposed patents.
Mr. Bergelt said the results will complement a project with similar
goals called Peer-to-Patent, which is based at New York Law School,
and will be published on a database operated by a company called IP.com.

Jay Lyman, an analyst at the market research firm 451 Group, said the
effort should have some positive benefits for open-source companies
while they hope for Congress to reform the patent system. "This is
their effort to play by the rules as they stand," he said.

The IEEE effort, by contrast, is aimed at helping companies that might
press for patent royalties as well as others that might pay them. It
is working with Dolby's Via Licensing Corp., which plans to approach
companies working on particular IEEE standards to see if it makes
sense to pool patents and establish standard royalty rates for
licensing them, said Jason Johnson, Via's vice president of marketing
and business development.

Patent licensing schemes often emerge after a technology goes on sale,
but the idea is to address uncertainties about royalty costs that
could deter companies from adopting new technologies sooner. "We are
seeking to address the problem before there is a problem," Mr. Johnson
said.

Write to Don Clark at don.clark@wsj.com

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


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