Cookies on Pinsent Masons website

Our website uses cookies and similar technologies to allow us to promote our services and enhance your browsing experience. If you continue to use our website you agree to our use of cookies.

To understand more about how we use cookies, or for information on how to change your cookie settings, please see our Cookie Policy.

Linux mob attacks patent trolls

We talk to the open source advocates who are building a public library of knowledge to block future patents claims against Linux19 Feb 2009

OUT-LAW Radio, 19/02/2009

A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.

Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.

My name is Matthew Magee, and this week we look at a programme designed to harness the power of annoyed open source advocates.

But first, here the top stories from, where you can read breaking technology law news throughout the week.

Mobile giants track web traffic,


Privacy watchdog steps up government criticism

All five UK mobile phone networks have monitored users' web surfing habits and submitted the data to an industry body to help generate advertising. Users' permission was not sought but the GSM Association says the project did not break privacy laws.

Industry body the GSM Association (GSMA) hired media monitoring company comScore to analyse the mobile phone surfing habits of UK users using data gathered directly from the networks. The data was anonymised and used to produce a list of the most visited sites by mobile internet users.

The GSMA's director of media and entertainment, Henry Stevens, said that the mobile networks take the traffic data and remove the internet protocol (IP) address and the mobile phone number, because these are personal identifiers. The traffic data is given a new identifier and passed to comScore. There, its identifier is changed again to further anonymise it, he said.

That information is then used to build the chart of the most popular websites as ranked by visits from mobile devices.

The Government's controversial plans to share personal data between departments and with the private sector are "too wide" and the safeguards "weak" according to privacy watchdog the Information Commissioner's Office (ICO).

The ICO has released its second opinion on the contents of the Coroners and Justice Bill, which proposes legalising greater sharing of information between Government departments and with outside contractors and private companies who request it.

When the Bill's proposals were first published, the ICO was less critical. The ICO now believes that the proposed new law poses some dangers to privacy and to the Government's accountability for the processing of personal data it has collected.

Rosemary Jay, a privacy law expert at Pinsent Masons, the law firm behind OUT-LAW, expressed similar concerns when the Bill was published.

Those were some of the top stories from OUT-LAW News.

It used to be so simple. Some people thought that software was a business, that the result of programming was a product which could be sold and someone, somewhere got rich. Mostly that someone was Bill Gates or Larry Ellison.

Other people thought that software was a tool to liberate computer users, a social necessity to enable people's use of technology. It was not for making money or for trying to control people's actions, and software should be open, free and endlessly re programmable by its users.

It's been a long time, though, since things were that simple. Now open source software is used in some of the world's biggest companies, open source companies themselves go out and make actual money and even the big software houses are prepared to integrate with open source projects.

There is still a big problem for open source and free software advocates, though. They may be beginning to recognise commercial software and vice versa, but there are plenty of people who will use the legal tools of the commercial world to try and make a buck, regardless of the rights that open sorcerors think they have.
These people are called patent trolls, and they will try to claim patents on technology that has already been invented or is obvious.

If one of those patents is for something that open sourcers have been doing for years, then it could stop them using a technology unless they pay crippling fees.

The highest profile open source software is the Linux operating system, and a group has formed to protect IT from such IP marauders. Linux Defenders is an offshoot of the Open Innovation Network, a company formed to protect Linux's IP which is funded by industry heavyweights including IBM, Novell, Philips, Red Hat and Sony.
Open Innovation Network Chief Executive Keith Bergelt explained why Linux Defenders exists.

Bergelt: The goal was to ensure that troll issues and issues from strategics were dealt with effectively so that the community continue to move forward in a wonderfully, kind of self organising and self regulating way that Linux evolves to the elegant community and one that represents the most significant economic force in all the open source world and so it is particularly important that Linux be protected and that a level playing field be created instead of just acquiring patents and licences and that we become more activist in the community to enable influence and defend the integrity of the Linux ecosystem as it relates to patents and patent and patent-related issues.

So what, exactly, is Linux Defenders? Well it seems to have been formed to channel the exasperation of open source advocates into useful action. Every time one of them reads about aggressive patent practices damaging the open source movement, Linux Defenders says it is they place they can go to, to make a difference.

You go there to publish documentation that will stop people stealing inventions and knowledge and claiming them for their own profiteering ends.

Bergelt: But the three core elements that we started Linux Defenders with was essentially to deal with the issue of the fact that there are bad patent applications, bad patents out in the market place and dealing with the past of what exists and then dealing with the future of how we invent and how we create engagement for the broader open source world.

A patent allows you a monopoly over your invention for a fixed period - it's designed to reward creativity. So you can't get a patent for something that has already been invented. Linux Defenders' activity is geared towards publicising inventions so that they cannot be patented in the future.

IT encourages Linux users to engage with the US patent office's experimental peer to patent programme, which for the first time allows third parties to submit evidence of previous inventions – known as prior art – to inform patent applications.

It also encourages them to submit material to a post-issue peer to patent programme, which invites evidence of previous inventions for patents that have already been granted.

The third activity it encourages is defensive publication. Bergelt explains.

Bergelt: These are essentially inventions that are clarified in such a way so that they are can be understood, readily understood and appreciated so structured presentation of an invention that we will help any individual inventor anywhere in the world prepare in a format that's recognisable to the patent examiners and will host it, will bear the costs of production will put it on which is the leading website in the world for such publications and which appears in hardcopy disk and on the desktop of every patent examiner in the world. We'll cover the cost of hosting that individual invention that turns into a defensive publication to ensure that patent examiners see what has been created.

The basic problem Linux Defenders hopes to address is that the patent system is overloaded, that it is very difficult to process thousands of patents a day and still find all the prior art.

Bergelt: You can’t simply do a Google search and pull up prior art. That is not – the level of complexity of data that exists in the world, the sorting and sifting process is still one that is extremely difficult and we're trying to make it efficient for relevant prior art to make its way through this defensive publications programme to patents examiners so in the future poor quality patents don't get issued because prior art has recognised. What they enable is not somebody to control the use of a particular space but what they create immediately is prior art which enables freedom of action and freedom to operate which uniformly is what everyone in the open source community is looking for.

In the past hardcore free software advocates such as the movement's founder Richard Stallman might have protested the injustice of the system, taking it on in arguments but not necessarily in action, says Bergelt. He hopes that his organisation and the Linux Defenders offshoots will change that.

Bergelt: Because of the legacy of Richard Stallman in the, when you're trying to drive a new paradigm it almost requires a certain level of extremism and I think, you know, so I am not in any way saying that Richard Stallman's view was a defective one given the times but I think a more balanced view that we now have the benefit of time and being able to adopt and take is that it's not about throwing the baby out with the bathwater, all intellectual property is not bad and to be rejected by the open source community. I am not anti patent, I am clearly focused on improving the quality of patents and ensuring that there is greater granularity in what ultimately does get granted by the patent and trademark offices around the world so that the patent system is back to what it was designed to be.

A fourth, till-now unannounced venture of the Linux defenders will be to create a helpline for companies to call when they need urgent assistance on a patent problem. The organisation can then recommend places for people to get advice, assistance and guidance on what to do next.

Bergelt says that with Linux Defenders now in place, he hopes that open source advocates will turn their annoyance and anger at abuses of the patent system to productive use.

Bergelt: From my view what I do is make the world safe for Linux and the democratisation of innovation. Mobilisation of the creative capacities of the community is what I am looking to do is provide a vehicle an outlet where you don't have to just rail against the system and say, "You know, look at that patent that was granted that's just stupid, that should have never been granted". Well I think we all can appreciate there are a lot of patents that should have never been granted but instead of just railing against the system now there's the capacity for the community to actually become involved in remaking the future and affecting the past if we can get contribution to help invalidate some of these poor quality patents that are out there with the post issue peer to patent programme. So it is really a comprehensive way of creating engagement for the open source community that is philosophically consistent with the tenets of open source.

That's all we have time for this week, thanks for listening. Do you know of a technology law story you would like to hear us cover, why not let us know on Make sure you tune in next week; for now, goodbye.