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Creating IP-based Platforms for Open Innovation in Linux & Beyond
• Agenda
– Setting the Context• Nature of Innovation• Realities• New Models of Open Innovation in Linux and Open Source
– Intellectual Asset Management In Linux/Open Source and Beyond
• Context-Driven IAM Choices• Patenting• Defensive Publications• Hybrid Structures
- Framework and Tools for Ensuring Freedom of Action in Open Source
Patent PoolsLinux Defenders
-Peer to Patent-Post Issue Peer to Patent-Defensive Publications
Components of Commercial Innovation
Context
Invention Productization Commercialization
Management of Perceptions of the
Market (Engendering/
Sustaining Demand)
Innovation Does Not Occur on a Clean Slate But Rather within a Context of Preexisting Technology and Intellectual Property That Must Be Understood
Realities –
• Linux and Open Source Programs (as a Prime Example of Open Innovation in Practice) Represent the Single Most Important Invention and Innovation Modality to Come into Being in the Post-Industrial Era
– Cost Effective
– Collaborative – Collective Intelligence
– Self Organizing, Self-Regulating
– Iterative
– Adaptive/Nimble
– Evolving/Inventive
– Global – G8 Countries & Beyond
Context
Realities –
Context
• Technology is self-creating, though it requires human agency to build it up and reproduce it. Yet technology evolves much like organisms evolve.
• All technologies descend from earlier ones, and those that perform better and more efficiently than others are selected for future growth and development
• The actors in the open innovation economy do not necessarily face well-defined problems or use exaggerated forms of rationality in making their decisions. They react to the outcomes they together create. Viewed this way, we find that the economy is not in stasis, but always forming, always evolving, and always "discovering" fresh/new novelty.
• High technology operates under increasing returns (1 + 1 + 1 no longer equals 3), and to the degree modern economies are shifting toward high tech, the different economics of increasing returns alters the character of competition, business culture, and appropriate government policy.
Linux/Open Source-Driven
Innovation
Open Source = Engagement, Efficient Use of Capital & Requisite Variety to Yield “New New”
Silo’d Technology Development = Exclusion,Inefficient Use of Capital & Lack of Requisite Variety
Company A Company B Company C Company DLarge Company
Small Company
Individual Developer
GLOBAL
GROUP
OF 8
Mid-Size Company
ResearchInstitute
University
Government
Context
Realities –
• Technology Companies have historically utilized codified (patents, TMs, copyrights) and non-codified (know-how, knowledge) intellectual capital to drive innovation and commercial growth
• Patent Offices have granted patents and continue to do so at record levels (software and beyond)
• Open AND Closed – business models in open source/Linux are both open and closed as innovation occurs within a technology and patent-enabled world where differentiation and competitive advantage are often secured/enhanced by IP
Context
Realities –
• Linux & Open Source Antagonists whose business models are antithetical to true innovation and/or who are threatened by Linux and OS exist – Litigation Focused NPEs, select operating companies…(what exists in Linux has parallels across technology)
• Linux Support Institutions in Place to Address IP Issues and Provide Stewardship - OIN (Linux Defenders, Defensive Patent Pool), SFLC (GPL), Linux Foundation/OIN (Patent Commons)
• Open Innovation Community Unified and Mature – less prone to experiencing FUD
• NPE’s Largely Focused on ROI and Not Anti-Linux or Adverse to Open Innovation BUT the business model can be unwittingly/wittingly co-opted to utilize patents against Linux & OS
• Defensive Patent Pools (OIN, AST, RPX) are Forming, at least in part, to counteract/address the Litigation Focused NPE problem
• Linux and Open Source is not so much about technology as it is a social and cultural shift in the way industry innovates - irreversible
Context
Context-Driven Intellectual Asset Management Choices
• Patenting
• Copyright
• Defensive Publications
• Hybrid Structures – Core Patents Protected by Defensive Publications
• Reform – Legislative, Regulatory, Judicial & Market-led - e.g.
Linux Defenders- Peer to Patent- Post Issue Peer to Patent-Defensive Publications
IAM in Linux & Beyond
Leading Industrial Companies
Linux/Open Innovation Community
Defensive Publications
Patents
Convergence of thought occurring that is ushering in alternative approaches to IP rights management
+
IAM in Linux & Beyond
OIN and Partners Collaborate to Facilitate Market-Led Reform
Linux Defenders Overview
• Peer to Patent – Ensuring Prior Art Relevant to Current Patent Applications is Known so Poor Quality Applications can be Rejected
• Post-Issue Peer to Patent – Ensuring Prior Art Relevant to Previously Issued Patents is Identified and Poor Quality Patents Can be Invalidated
• Ensure that “Defensive Publications” are Produced and Available to Patent Examiners (via IP.COM) to:
• Serve as Prior Art that Limits Future Marginal Quality Patenting in Linux and Ensures “Freedom of Action”
• Protects Core Patents in Rapidly Advancing Technologies where ‘Family’ development is impractical and/or not cost effective
Linux Defenders
Defensive Publication
Linux Defenders
In Sum, Innovation Arises from a Context – So, We Must Enable a 'Context for Innovation' to Develop and Sustain
• Open Invention/Open Source (collaborative invention)
• Global Engagement (innovation no longer province of G8 country companies)
• Industry Cross-Licensing - ensures freedom of action and freedom to create and introduce new product/offerings
• Defensive Patent Pools (defensive platforms) – Patent Removal, foundations for cross licensing, patent lending libraries, provides small companies critical mass and independence, (anti-troll and safeguards against operating company aggressors whose behaviors and business models are antithetical to true innovation)
• Patent Clearing Activities – Linux Defenders-like initiatives to ensure
• poor quality patent applications do not issue,
• limiting the effect of patents that should have never been issued,
• populating the universe with prior art that is accessible and effective (defensive publications)
• Alternative Approach to Codifying Inventions - BOTH Patents & Defensive Publications (not one or the other), Searchable Project Content/Prior Art
Key Points
Conclusions
In Closing…
The What
The How
IP/Community Considerations
Design in Context
• Innovation Must be Understood – Contextual and Far More than Simply Invention
Conclusions
The What…
• Innovation Occurs in OS/Linux through rich collaboration networks where technologies build on one another and yield increasing returns (1+1+1 = 8) and ‘new novelty’
Conclusions
The How…
• Linux Defenders/Defensive Clearing Activities - part of Global Market-Led Patent and IAM reform that has application in the new context of Open Innovation
• The LINUX/Open Innovation Community must meet Legislative, Regulatory and Judicial Reform “half way” for true change to occur & ensure protection – Participation and Accountability are Key
• The Open Innovation Community comprises an Elegant Self-Organizing, Self-Regulating Ecosystem that has Certain Behavioral Norms that Need to Be Observed
Conclusions
IP/Community Considerations…
• IP-based Platforms that support Open Innovation Must Be Appropriate for the Business Model & Technology and Explicitly Consider the Current and Prospective Context/Realities
Conclusions
Design in Context…
Summary of Operational Activities
OIN Mission Summary
•Open Invention Network – Industrial Firms Committed to Open Source and Linux and Engaged in Purchasing/Licensing of Patents & Parallel External Actions to Create a Patent “No Fly Zone” around Linux
• Patent Acquisitions (past and current inventions)• Directed Invention (Universities, Individual Inventors, Acquired Patent-Centric SMEs)
• Patents• Defensive Publications•Patents w/Defensive Publications
• Royalty Free Licenses• One on One Navigational Guidance to Those Under Threat• Linux Defenders
• OS “Peer to Patent”• OS “Post-Issue Peer to Patent”• “Defensive Publications”• “LinuxDefenders911”
