Open source and AI from a community-based intellectual property perspective

We recently had the opportunity to speak with Keith Bergelt, the CEO of Open Invention Network (OIN). OIN is the largest patent non-aggression community in history and the forerunner to many other organizations that have been formed to collectively shield companies and technologies from patent aggressors.

OIN is almost 20 years old; could you give us a recap of what it is and what it does?

OIN was founded in 2005 and is funded by Google, IBM/Red Hat, NEC, Philips, Sony, SUSE, and Toyota. OIN is the only institution focused on mitigating patent risk in open-source software (OSS). It gives the open-source community the freedom to innovate by clearing patent risks through the world’s oldest and largest cross-license. Its cross-license protects widely adopted open-source technologies from patent aggressors. 

Over the past 20 years, OIN has expanded the scope of its protection more than 10 times to include dozens of widely used open-source platforms and thousands of critical software components. They span key technology areas and industries. At the same time, the OIN community has grown to include more than 4,000 community members who own over three million total patents, amplifying the importance of OIN’s patent cross-license.

Why focus on building block technologies?

Prior to the advent of open source, companies built an entire software stack from the operating system to the applications. This meant that they had to innovate every bit of software they owned, and software became siloed. It meant that the customer had to choose between one complete platform or another. This was inefficient and stifled innovation.

By sharing building block technology advancements, developers can focus their investments and resources on the differentiation of their products or services higher in the software stack where it matters most. This means that as core technologies have iteratively advanced, everyone’s platform, application, or service has benefitted from increasingly sophisticated and more valuable code. This change in the way of thinking and developing has driven a rapid increase in overall innovation.

How is OIN doing in terms of its community and activities?

As threats have shifted over the years, we have adapted to ensure continued protection for open-source software. When we first started, we focused on protecting open source from corporate patent aggressors that were trying to use their patent portfolios strategically against open source to slow its growth. However, OIN recognized the threat from patent assertion entities relatively early and also began combatting them with our activities as early as 2009. Over the last 8-10 years, we have done even more to address the threat that patent assertion entities represent to open source. 

It is important to understand the breadth of the OIN community, through which the OIN cross-license helps to mitigate patent risk. Our community consists of more than 4,000 organizations from dozens of industries, including banking and finance, insurance, automotive, communications, healthcare, construction, manufacturing and chemicals, utilities, and the traditional technology industry verticals, among many other categories. Our community is truly global, with almost an even representation of licensees/members from Asia-Pacific, Europe, and the Americas.

What do you see as pivotal for the open-source community in 2025?

Continued adoption and integration of open source will continue to be a key issue in 2025. Higher levels of its adoption in the enterprise will increase efficiency and lower costs. Open source is incredibly prevalent – it is used in communication networks, it is the most popular search engine, it underpins most mobile devices, it enables IoT, and that barely scratches the surface. The adoption of open source will only accelerate over time.

And then, of course, there is artificial intelligence (AI). Large language models (LLMs) will continue to dominate the technology discussion in 2025, and open source will increasingly become a critical building block of AI platforms. 

Given that AI continues to be at the forefront of everyone’s mind, how does OIN view it in the context of open source?

We are considering the innovation within LLM development and where adjacent technologies come into play. We readily agree that advancements in LLMs are incredibly significant. They will change people’s behaviors and corporate technology investment strategies substantially, as significantly as the development of the smartphone did. We also see incredible innovation in peripheral areas such as agentic technology.

Landmark innovation like AI is incredibly important. Within our team and our community, we are tackling the challenges of identifying and including critical open-source technology that will underpin AI platforms and proactively protect AI innovation in the area from patent litigation risk.

What is OIN doing in the realm of open source?

We are active in our coordination with key open source projects and OIN licensees/community members to ensure that the most important technologies continue to be included in our ever-growing patent non-aggression zone, which had its origins with the Linux Kernel and which we characterize as the Linux System Definition.  

As it relates to AI, a large percentage of the LLMs that are available for use today are open to one degree or another and can only be expected to become more so as a premium is placed on increased transparency. We are in the process of determining what core technologies and appropriate software components are the most critical for inclusion in the next Linux System Definition update. While organizations invest in and integrate AI technologies, we want to ensure that the OIN community is protected from aggressive corporate entities looking to slow or stall the progress of open source adoption, as well as PAEs who tend to be primarily focused on return on capital.

Where do you see OIN by the end of the year?

We will continue to invest in ensuring that the OIN licensee community is protected from PAEs through various programs that we implement and direct. These include the protection that derives from expanding our network and the OIN cross-license, prior art invalidity analyses, and ex parte reexaminations performed through our partnership with Unified Patents, with whom we founded the “OSS Zone.”

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