Now is the time for the open source ecosystem to band together and find strength in numbers
CNCF and The Linux Foundation are expanding their partnership with Unified Patents to protect open source software from non-practicing entities (NPEs), commonly referred to as “patent trolls.” This enhanced partnership brings new benefits to LF and CNCF members in terms of access to enhanced NPE deterrence mechanisms. In this blog, Joanna Lee, Vice President of Strategic Programs and Legal at CNCF and the Linux Foundation, explains what those benefits are, why they are needed, and why it is so important that open source users and vendors join together to protect the cloud native and open source ecosystems.
Q: What are patent trolls and why are they a threat to open source?
JL: Patent trolls are entities whose sole purpose is to buy patents and threaten companies (both vendors and adopters) with patent litigation to extract money. Companies on the defense will often pay settlement fees to avoid the even higher cost of litigation, even when the troll’s patents and legal arguments are of questionable validity. Trolls use each of these wins to bolster the impression that they have an enforceable patent, and this helps them convince other companies to also settle.
Q: Are these types of threats growing in open source?
JL: Patent trolls go after successful, broadly adopted technologies–whether closed or open source–because it’s a numbers game. Broad adoption and success equate to higher settlement payments and more companies to shake down for money. Any software that is pervasive and widely used are targets of NPE aggression.
Q: What is Unified Patents and how do they deter NPEs?
JL: Unified Patents is a membership-based organization that uses a range of tools and strategies to deter NPEs from targeting specific technology areas, referred to as patent protection “zones.” In 2019, the Linux Foundation partnered with Unified Patents to establish an Open Source Zone. In addition to directly challenging NPE patents through invalidity proceedings (with a 90% success rate), Unified hosts crowdsourced prior art searches, shares intelligence about NPE campaigns, negotiates royalty-free licenses to benefit all companies who participate in the impacted zone, and arms companies with tools and information to strengthen their defense against NPE threats.
Q: Why is a community-based approach so important?
JL: Ultimately, we want patent trolls to conclude “the open source ecosystem is not worth our time because it has banded together and is too hard to shake down.‘’ When it comes to NPE deterrence, there is strength in numbers. When organizations join forces to safeguard open source innovation through Unified Patents’s programs, we can achieve far more with fewer resources than when individual companies act in isolation. Companies are far more vulnerable to NPE’s predatory behavior acting alone than when they work together to deter invalid assertions. Additionally, many companies find that it’s more cost-effective to sponsor certain types of deterrence activities through Unified than to pursue similar efforts on their own.
Q: What are the new enhanced benefits for LF and CNCF members?
JL: As a result of this expanded partnership, members of the Linux Foundation and CNCF–over 1300 companies–will gain access to a suite of benefits based on their membership level to assist in proactive NPE deterrence, including:
- Annual NPE risk analysis
- Patent portfolio analysis tools
- Access to Unified’s PATROLL prior art contest submissions
- Regular updates regarding NPE campaigns, developments in patent laws and policies, and other news regarding NPEs and Standards Essential Patents
- Opportunity to sponsor crowdsourced prior art contests and benefit from any royalty-free licenses granted in resulting settlements.
Q: What should adopters and vendors of open source do now?
JL: We encourage LF/CNCF members to take full advantage of the new benefits offered through this partnership. However, these benefits are just a starting point. We encourage all companies in our ecosystem to also participate in the broader set of NPE deterrence programs that Unified Patents offers, both to strengthen the collective defense and to support expansion of Unified’s deterrence activities to counter the rise in NPE aggression.
Q: How can open source developers help?
JL: Open source developers can help by contributing evidence of prior art to Unified’s crowdsourced PATROLL prior art contests for the Open Source Zone. Prior art–evidence that the patented invention was not “new” at the time the patent application was filed–can be used to invalidate an NPE’s patent and weaken their ability to weaponize it. CNCF and Unified will co-host a prior art contest at KubeCon + CloudNativeCon North America 2024. The winner will be awarded a cash prize and recognized on the KubeCon keynote stage. More details will be announced soon.