Law Times

PAGE 12 FOCUS February 9/16, 2009 • Law Times Open Invention Network's latest tool: Linux Defenders BY JULIUS MELNITZER For Law Times A s everyone knows, Mi- crosoft has no problem flexing its muscles. And one continuing target of its threats has been the free software distributions that characterize the open source community led by the Linux operating system. "Microsoft has been saying for years that they're going to be cracking down on open source products," says Neil Henderson of Borden Ladner Gervais LLP's Toronto office. While no patent lawsuit al- leging infringement has ever been brought against the ubiqui- tous open source operating sys- tem, MS has claimed that some of Linux's components violate its patents, and that these viola- tions constitute barely a fraction of some 235 violations found in open source products. Microsoft's hit list includes OpenOffice.org and various un- named e-mail clients. In 2005, however, major open 'Microsoft has been saying for years that they're going to be cracking down on open source products,' says Neil Henderson. source manufacturers, including Red Hat, IBM, Sony, Phillips, NEC, and Novell banded to- gether to form the Open Inven- tion Network. The company's mission was to protect free soft- ware from patent enforcement. OIN's latest tool in its battle is Linux Defenders, an online pro- gram that combines free online intellectual property publication development tools and databases with the collaborative power of the open source community. OIN co-developed Linux De- fenders with the New York Law School and co-sponsored the program's development with the Software Freedom Law Center and the Linux Foundation. "The issue with software patents is that a good source of prior art does not exist," Hen- derson explains. This has led to concerns about the quality of software patents. "Patenting of software is still relatively new, so the examiners do not have a very complete da- tabase," says Brian Gray of Ogil- vy Renault LLP's Toronto office. In essence, then, Linux De- fenders amounts to an attempt to establish a prior art database by way of collaboration from the open source community. OIN believes this will significantly re- duce the number of patent appli- cations and poor quality patents. The Defensive Publications component of Linux Defend- ers lets non-lawyers use a set of web-based forms to generate de- fensive publications, which are documents that provide descrip- tions and artwork of a product, device, or method so that it en- ters the public domain and be- comes prior art. The disclosure protects inventors' access to their own invention by preventing others from later making pat- ent claims on the invention. It's a far faster and cheaper way of obtaining security than filing a patent application. But defensive publication can be a double-edged sword. "The idea of a group effort at defensive publication is a good one, but the flip side is that in- ventors are posting exactly what they're doing, which makes life somewhat easier for those seeking to identify infringers," Gray says. In any event, OIN's lawyers will review and edit defensive publication drafts at no cost. OIN will also add the final ver- sion to the IP.com database, which both IP lawyers and the U.S. Pat- ent and Trademark Office use to search for prior art when examin- ing patent applications. Linux Defenders also features the PatentRx program, which pro- vides web-based tools and offline resources for lawyers and non- lawyers to identify relevant prior art not identified by the USPTO when it examined a patent. While the group's December 2008 press release that unveiled Linux Defenders did not spe- cifically mention MS, there's little doubt the new tool is at least partly aimed at the software giant. "Linux Defenders will make it easier for the open source commu- nity to demonstrate that Microsoft wasn't the inventor of a product or that a particular patent is invalid because of the existence of prior art," Henderson says. OIN also has offensive weap- ons in its arsenal. Indeed, it owns 13 per cent of all U.S. soft- ware patents and could use them to launch its own infringement suits against MS and others. OIN's patents include ones for the Apache web server; the Gnome and KDE graphic inter- faces; Mozilla's products includ- ing the Firefox and Mozilla web browsers, and Thunderbird, an e-mail client; MySQL database software; OpenOffice.org's office suite; the Perl and Python pro- gramming languages; and the Sendmail e-mail server. 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Full service subscription (parts and bound volume) • P/C 0325094999 $399 per volume • ISSN 0008-4689 • 9 volumes per year Back volumes, Table of Cases and Index available upon request Marketplace OFFICE FOR RENT North York accounting firm has a full service executive office for rent. Call Saveria 416-631- 9800. To advertise call 905-841-6481 or receives them through dona- tions. In turn, the company of- fers them to Linux developers through a cost-free, cross-licens- ing agreement that prohibits de- velopers from enforcing the pat- ents against the open source com- munity or against each other. But there's an irony here. "The difficulty with OIN ac- cumulating patents is the open source community's basic prin- ciple that software shouldn't be patented," Henderson says. 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• Cover
• Salary Delay
• Day of Discipline
• Focus On Intellectual Property/Trademark Law