The primary intellectual property (IP) adversary of open source in its early years was copyright litigation brought by proprietary businesses.
Before they could turn into dangerous competitors, they sought to put an end to open source projects. The most well-known instance of this was with the Microsoft-sponsored Linux lawsuits between SCO, IBM, and other parties. The lawsuits were won by supporters of Linux. And thanks to open source software, everything was calm. It was then. Right now. Open source software developers are currently facing an increased danger from patent trolls.
More than ever, open source is a success. Even Microsoft, which formerly opposed Linux and open source, has realised its folly. The good news is that. The bad news is that because of its popularity, patent trolls—also known as Patent Assertion Entities (PAE)—are now more aggressively going after its beneficiaries. According to a recent UnifiedPatents analysis titled “Defending Open Source: An 2022 Litigation Update,” attacks by patent trolls against open source projects are expected to rise by 100% over 2021.
To be exact, as of June 6, the number of patent attacks by trolls against open source projects had already reached the total for 2021. Some of the most well-known trolls are among the top 10 assailants in these attacks.
Patent trolls are a sizable industry unto themselves. The troll can file a lawsuit without having to prove malice or give the defendant any notice. Such lawsuits can be filed for cheaply and profitably.
Keith Bergelt, CEO of Open Invention Network (OIN) pointed stated “The most sophisticated and compelling global banking and fintech companies have essentially become technology companies that employ open source software to deliver their services at scale.” He also said that patent trolls “appear to be targeting them for this reason, along with the fact that financial services companies have not historically been active patent filers.”
After acquiring software patents, the trolls search for businesses that have productive commercial programmes or employ open-source software. Then they assert that the successful programme violates their patent and that the company or group is owing them money as a result. It is not necessary to provide any evidence that the creators were aware of the patent or if they applied it to their work. Due to the fact that some courts, including the U.S. The Eastern Texas District Court will approve patent litigation. Of course, the trolls shop their lawsuits to the favourable judges.
Financially speaking, it frequently works because it is less expensive to pay than to defend, therefore the patent trolls will then demand money for the use of their “work.”
It’s also challenging to determine who actually owns a patent, which makes them even harder to defend. Limited License Corporations (LLCs), which can change their names more quickly than you can change your socks, are frequently used as a cover by patent trolls.
As a result, trolls are now responsible for 71% of all patent cases launched against open source technologies. Today, well-known technological companies like Google, Samsung, and Apple are the most frequently attacked businesses rather than tiny businesses that lack the financial wherewithal to defend themselves. Although there is a high chance that they will lose or not get paid, the benefits can be quite high.
An invalidation defence is used to combat them by organisations like Unified Patents, a coalition of businesses fighting the trolls. With this strategy, their attorneys and developers want to demonstrate that the patent was worthless from the start. The US Patent and Trademark Office (PTO), which issues software patents, regularly approves applications that never should have been granted in the first place.
The OIN is in charge of other projects. The OIN is more effective against genuine patent challengers rather than trolls thanks to its huge patent portfolio. However, it has also worked successfully against trolls. The OIN’s assistance in the GNOME Foundation’s victory over a troll is the most well-known recent example.
