by Yogesh Gupta

Threading the Duality of Open Source and Closed in Technology: Keith Bergelt

Sep 06, 2015

It is a real challenge for CIOs to make good choices to employ open source in the enterprise and manage it effectively, says Keith Bergelt, CEO, Open Invention Network.

Open Invention Network is a pro-competitive platform that is open to every company. Keith Bergelt, CEO of Open Invention Network (OIN) on  India visit spoke extensively with CIO India about the need for CIOs of modern companies to develop more comfort dealing with the duality of open and closed. We licensed 200 companies last quarter alone, which indicates the increased numbers and absolute buy in from open source community, he said.

OIN claims to be the largest patent non-aggression community in history. What does it actually mean for the tech world?

In the wake of SCO (the company originally funded by Microsoft) litigation in the mid-2000’s, there was a growing concern about usage of patents to slow or stall the progress of Open Source and LINUX in particular. The main emphasis during formation of OIN was LINUX as it was the largest embodiment of Open source with significant revenue generation and core enterprise focus with platforms of SUSE and RED HAT.

There was a need for patent non-aggression, so that patents would not become a deterrent for the user community. IBM, Red Hat, Novell, Philips, Sony, and NEC came together to create a patent no-fly zone around Linux. The model was borrowed from the ‘Coopetition’ concept introduced by former Novell CEO Raymond Noorda in early nineties. Coopetition has gained more gravitas especially across open source communities since that time

OIN embodies the notion of coopetition through the offer of a free license that has, over time, created a new norm or code of conduct around the use of patents.  We are not excluding patents or denigrating their role but instead acknowledging that we have entered in the inter-dependent world of cooperation and competition. When we explicitly acknowledge dealing with duality, it frees us to create a system of patent non-aggression to collaborate and cooperate, but not sue each other. Elsewhere in the competitive world, patents can be used to create differentiation and drive innovation.

The important aspect preserved was the notion of increasing returns delivered by open source. It is not one plus one plus one equals three but much more — it equals six, ten or twenty because the collective intelligence around a technical issue and/or business problem is distilled from various smart people across the world.

Was OIN incepted because the largest proprietary software vendor was becoming a big threat to open source?

Larger vendors at that point were acting in an antagonistic way to LINUX and open source. In fact, some of the comments here were so by IBM about computing when Bill Gates was launching Windows were eerily similar to the then comments by Bill Gates and Steve Ballmer in 1998/1999 and 2000 about open source.. They referred to open source as a hobbyist activity that will never scale and encompass mission critical applications.  Give the widespread usage of open source technology, quite obviously they were wrong on this point.

Microsoft in the early 2000s was not overly focused on competing by innovating but was instead looking to cripple other vendors’ products. And the action during SCO was more to sustain the franchisee around Windows. It became obvious after six months of litigation that the funding for SCO litigation was actually coming from Microsoft. The comments from the CEO subsequently made it very clear they were coming in to fund litigation and they were requesting the litigation be filed against the leaders of the open source movement particularly in the enterprise where they felt most threatened. At the time, SCO became a seizing event, and the fact it was funded by Microsoft indirectly became a sort of concern.

OIN was formed to be open to every company. It is a pro-competitive platform. Every year any new activities undertaken are looked through the optic of competition authorities to make sure OIN remains pro-competitive.

Microsoft has changed since half a decade as it now works on open source or non-proprietary systems.

Technologies like Hadoop — which we will protect next year as we expand LINUX definition —  is a perfect example of how Hadoop makes Azure run better. Two primary beneficiaries – besides Google and Red Hat – are Microsoft and Amazon as major users of Hadoop. Hadoop’s open platform makes their proprietary or partially proprietary offerings more effective, efficient and adaptable. Everything has become more mixed up in a positive way with a sense of randomness about picking and choosing the best solution.

Microsoft has evolved and so has the open source community. When OIN was formed, nobody anticipated the incredible growth of mobiles and the meteoric rise of Android. The launch of Samsung’s Tizen, WebOS’s is deployment for home solutions by LG and there are many other platforms emerging – by the day.  IoT is a clear example of redefining the dynamics of how we interact with mobile device as we come and pass through the home and broader electronically enabled world where the lines between work and play are increasingly blurred.

Are the days of ‘One throat to Choke’ or ‘One Vendor to Work’ kaput for CIOs?

CIOs have to develop more comfort in dealing with the duality of open and closed. People will always make choices to differentiate. We are agnostic as to how people make those choices and we know that’s part of the equation. There can be guides that help companies make those multiple choices.

That’s why CIOs have probably become more reliant to engage with a thoughtful IT shop – be it TCS or Wipro or someone else. A CIOs relationship is evolving to place more responsibilities on the systems integrator — to make good choices about open and closed, about technology and roll out of new technologies.

Open Source for years has been looked upon as free to use, a stripped down version of proprietary enterprise software. Has that perception changed?

Yes, to a large extent, as there is much robustness built into the software for open source to deliver solutions to the user environment. In the US, most supermarket transactions flow through Linux based backbone as is the case with eBay or Amazon. The walk signs /control lights across the streets in most cities are on open source as are the stock and commodity exchanges. IOS too is replete with Linux code as it was developed around open source technologies.

Coders have become better because they are recognizing the app environment of their codes going to be used in will provide more of a test. It is the incredible organic process of updating in open source which was quite uncomfortable two decades ago. Now you recognize that the self-organizing, systems that are self-regulating is the only way to debug on an ongoing basis.

Any new kinds of threats for LINUX the ecosystem, maybe in cloud or mobility?

We are creating an ever larger community of companies committed to patent non-aggression in Linux and thereby seeking to isolate through their non-participation those companies that express themselves in a threatening way and use patents to slow or stall Linux or attack legitimate uses.   Those who use open source code and contribute back code to projects are often best positioned to deal with rapidly changing markets.  

Others are threatened by a future in which project-based collaborative innovation through major initiatives like OpenStack are increasingly the norm.  For example the Ericsson-Xaomi debate is clearly representative of old line company having trouble competing in an increasingly open source-driven technology market.   For example, Ericsson now lives with the daily challenge of developing SDN programs that transform its business/products into one that is adaptable, programmable and capable of evolution. And you have another company Xaomi that has grown in 5 years as the world’s third largest smartphone manufacturer. They have a diverse portfolio backed by a reliant and advanced open source program. Without open source they would not be anywhere where they are today.

This is the real challenge to sustain legacy business when organizations do not make good choices on how much open source to bring into the enterprise and manage it effectively.

Will SMAC (social, mobile, analytics and cloud) escalate the war between proprietary vendors and open source vendors?

The emphasizing role of ITU-T as a standards organization had led to standard activities becoming more prescribed and having a narrower focus. We are developing defacto standards through OpenStack and other major global open source projects that create a need for inclusivity. Google joined OpenStack not long ago. Amazon is the only company I can think of that does not participate and its non-participation risks its isolation and loss of market leadership in the Cloud. When we make the decision to work and innovate together we reduce the opportunities for antagonism to occur because we recognize our inter dependencies in a very explicit way.

Open Stack is a great example of a project that redefines how we behave with each other and requires inclusivity due to the centrality of its code to how the Cloud of the future is evolving. Open Stack creates cohesiveness to recognize common aligned interests and reduces the likelihood of patents being asserted in the core technology on which all participants rely while permitting patenting and potential differentiation higher up in the stack should that be a strategy that a company seeks to pursue.    Other than Linux, Open Stack is potentially the most important project in the history of open source.

IBM received 400 plus new cloud patents in 2015. What role does OIN play as tech companies – including mobile and open source companies – become aggressive to file patents?

We outreach to companies and entities that are technology managers for major projects. We have now 55 plus OpenStack packages, 68 from Android and we will bringing in some from Hadoop. We are expanding to essentially neutralise the threat in what’s core that everyone will be standardising around from every major project in open source. We are creating this patent non-aggression zone. We have 1650 participants in our community. We are licensing more than one organization per day over the last three years. We licensed 200 companies last quarter alone, which indicates the increased numbers and absolute buy in from community.

IBM can invent but at the same time they are pledging. Because they are contributing their patents into cross licence to all companies who participate in kind to patent non-aggression in core Linux- defined by OIN as Linux system. That’s how these companies reconcile their invention strategies. Red Hat licenses its patents through its participation in OIN and also independently pledges and promise that it will not sue anyone as long as they behave well. I have every reason to believe IBM and Google will continue to pledge additional patents under their now well established unilateral programs which are complementary to their OIN patent non-aggression commitments.    

As active participants in OIN both companies see the importance of the patent non-aggression solution. The Red Hat, IBM and Google example of OIN participation and unilateral patent pledges to the community have spurred others to follow suit.  Twitter has its own inventor friendly pledge which would limit use of those inventions and the resulting patents without permission from the inventors.

OIN provides a macro solution to help create a healthy and open invention environment around fundamental technologies developed by major projects. The companies agree that they will not sue each other in this zone (Linux System) and cross license each other in and around core functionality. But everywhere else companies may patent and use patents if they choose to do so. Beyond the broad-based pervasive model that OIN provides, projects such as AllSeen will sometimes implement supplementary micro project level patent non-aggression programs which work hand in hand with OIN and with any of the individual company-specific pledges.   It is important to note that these are not pledges or promises just made for window dressing but instead are enforceable legal commitments.

That does not decrease the cases of technology companies suing each other.

It does. There is a decline in number of operating companies suing each other Companies recognizing the need for collaboration and patent non-aggression in core open source technologies are joining OIN and pledging patent non-aggression.   There is patent litigation in the U.S., however, when operating companies sell patents to third parties and those third parties don’t have business models other than leveraging those patents through litigation.  

Due to OIN’s active acquisition of relevant Linux-related patents in the secondary market over the last ten years, these patent assertion entity lawsuits have almost exclusively been on non-Linux related subject matter.  OIN was designed to discourage law suits in court for Linux and open source.  Other than one suit filed by Microsoft, there is not been a single suit where core Linux has been targeted

Linux has been a favourite with verticals like government and education. Why has the corporate world built a wall against it?

The communities’ growth and Linux’s growth is inevitable. There is a certain fear in the beginning for everyone – no matter which country – fear around what this might mean and how do we manage it. The hump that CIOs have to get over is to manage the duality of open and closed.

In Bhagvad Gita, it is mentioned eighteen times that the path to higher consciousness is dealing with duality and reconciling binary opposites. It is the path to higher innovativeness for companies to manage that same duality. It does not come intuitively to anyone and one needs an IT advisor or consultant to help navigate this phase. It’s getting over that hurdle which is the biggest barrier to acceptance. It imparts flexibility of cost control and secures scalability. It almost requires a leap of faith which, given the fact that that open source has been successfully deployed by many so companies globally, I think it will make it much easier for Indian companies to take that route.

Any sound advice for CIOs to build a robust IT infrastructure – proprietary, open source or a mix of both.

Understanding strategy, implementing strategy, and that the strategy will require open source as a part to remain sustainable. That strategy will require that you understand how you differentiate and on what technologies. And utilising a sound intellectual property strategy is important.

The other important point is recognizing the importance of good hygiene on copyright compliance which goes hand in hand with open source introduction and integration. Copyright requires you have sound fundamental understanding of the compliance requirements and a governance strategy. That’s not an insurmountable challenge by any stretch but it does require attention.

What are key priorities of OIN in 2015 & beyond? Where does India feature in that list?

India and China are two countries of core focus in the future. The inception of our Asian Legal Network aims to make sure that the knowledge that exists in the rest of the globe is shared to overcome the fear that discourages uptake and inclusivity in global projects.

Micropayment and the deployment of block chain technology is one such example where the Chinese command a unique position. We would like to see a micro finance open source project started in China for other companies to be brought into. The dynamics will change from the norm of projects starting in Europe or the US and other companies joining in. There is leadership, tech development, skill and experience in India and China. We need to turn the tables around in the technology environment. The idea that thought leadership only comes from traditional geographies is not true. A great project can be invented from anywhere — maybe people in a living room — contributing to support all matter of applications and services around the world.

We are expanding the community of patent non-aggression here through more participation from companies. And also encouraging the creation of more connective tissue between Indian companies and rest of the world. In time we would like to see India become a host to regional and global open source projects and, as part of this process, witness India’s ascendance as a leader in software innovation in open source.

Yogesh Gupta is executive editor of IDG Media. You can reach him at or follow @yogsyogi1