Open source orgs strengthen alliance against patent trolls

The more successful FOSS gets, the more it becomes a target

Patent trolls are increasingly targeting cloud native open source projects, leading the Cloud Native Computing Foundation and Linux Foundation to make efforts to extend their legal shields over such efforts.

The polite term for patent trolls is "non-practicing entities" (NPEs) – orgs that exist solely to extract licensing fees through legal claims of patent infringement.

"They chase any broadly adopted technology," explained Joanna Lee, VP of strategic programs and legal at the Cloud Native Computing Foundation (CNCF), a part of The Linux Foundation. "It's a numbers game and it's more profitable to chase broadly adopted technologies."

NPEs are increasingly targeting cloud native open source, Lee said in an interview with The Register, because it has become ubiquitous. She pointed to the Kubernetes project, which has been hit with more NPE claims than any other cloud native software.

To discourage patent litigation, The Linux Foundation and the CNCF on Monday announced an expansion of a 2019 partnership with patent defense firm Unified Patents. The revised relationship extends Unified Patent services – NPE risk analysis, patent portfolio analysis, and participation in Unified's PATROLL prior art bounty program, among other services – to more than 1,300 member entities that support The Linux Foundation and CNCF.

Unified Patents' goal is to deter predatory patent claims, which it does through efforts like its crowdsourced contests to identify prior art that would invalidate an improperly granted patent. The biz boasts it has successfully challenged over 55 NPE efforts that threatened open source software.

"The more ubiquitous something is, the easier it is for an NPE to identify it as a potential target [for infringement claims]," explained Shawn Ambwani, co-founder, chief operating officer, and SVP of legal at Unified Patents, in an interview with The Register.

"Unfortunately, most of the time, as has been seen over and over again, these patents are invalid. And they're simply doing it because the cost of litigation in the US is so high that they can settle out of court with a large set of companies and make a decent amount of money off of it because it's profitable."

The Supreme Court's Alice Corp. v. CLS Bank International decision in 2014 did limit the potential scope of infringement claims in the tech industry – by ensuring that abstract ideas don't automatically become patentable just because they're implemented on a computer. But dealing with infringement claims from NPEs is still a problem, because the high costs involved favor settling, regardless of the validity of the patent.

And the situation could get worse, according to Ambwani, if the PREVAIL Act, scheduled for consideration by the Senate Judiciary Committee on Thursday, becomes law. He warned that the bill, if enacted, will make it harder to challenge patent validity.

Among other restrictions the Act imposes – ostensibly in the name of "protecting inventors" – it limits patent challenges to a 14,000-word petition, which precludes providing enough detail to challenge complex patents. Beyond that it prohibits clearance patents, which a manufacturer might use to check if a product is infringing prior to release.

About 98 percent of NPE infringement claims are settled, according to Unified Patents. But when challenged, 67 percent of NPE claims lose when reviewed by the US Patent and Trademark Appeals Board – after years of effort and an outlay of $200,000 to $500,000. For NPE claims taken to a District Court, 74 percent lose, at a cost of $1 million to $5 million over two to five years.

There were just 32 NPE assertions of patent infringement against cloud native open source projects in 2015, per Unified Patents data. That number rose steadily to reach a high of 198 in 2021, followed by 162 in 2022, and 126 in 2023. Of high-tech patent litigation last year, NPEs accounted for 87 percent of patent assertions.

"There are a number of big entities and medium-size and small entities that have gone after CNCF projects," noted Ambwani. "Ultimately the goal is to provide leverage to these companies, especially the smaller ones that don't have the resources to be able to present a front to say, 'This patent is invalid, you don't have any right to be asserting this in any way against this technology, and you need to go away.'" ®