SALT LAKE CITY — When over 9,000 people showed up at KubeCon+CloudNativeCon North America, they expected to hear about how to deploy Kubernetes at scale, what new projects have graduated from the Cloud Native Software Foundationj (CNCF) sandbox, and the latest eBPF tricks. They didn’t expect the first keynote topic to be about how patent trolls attack companies for the “crime” of using Kubernetes. Welcome to 2024.
In her keynote, Priyanka Sharma, the CNCF’s Executive Director, revealed that patent trolls were coming after companies using Kubernetes.
It appears that simply looking for a Kubernetes engineer on LinkedIn would be enough for Edge Networking Systems LLC to demand that you pay a license for using its patent, US-11695823-B1, which it claims Kubernetes is based on.
This patent is for a network architecture that facilitates secure and flexible programmability between a user device and across a network with full lifecycle management of services and infrastructure applications. If that sounds like it can cover pretty much any cloud native- or just plain cloud, for that matter — architecture, you’re right. It does.
What Are Patent Trolls?
You see, patent trolls collect such patents not because they want to use them in their own program. Building useful software is not how they make their money. They make their cash by threatening companies that make or use such software with lawsuits if they don’t pay up. Many companies pay because the cost of litigation for a patent lawsuit is — I kid you not — $1.6 million through discovery and $2.8 million if all goes all the way to final disposition. That kind of money can kill a small business and hurt even the biggest companies.
Who wants to take a chance on that? So, it’s a great and very profitable scam. As the Electronic Frontier Foundation (EFF) puts it, a “patent troll uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas.”
For years, trolls have come after people who use open source projects. And, for years, the Linux Foundation, Unified Patents, Microsoft, and the Open Invention Network (OIN) have been trying to fight off open source patent trolls. With their Open Source Zone launch court cases against poor-quality patent-troll-owned patents such as 823-B1.
Their favorite weapon in such cases is to find prior art — evidence of preexisting technology — to show the Patent and Trademark Office (PTO) that the patent never should have been granted in the first place. In short, as Jim Zemlin, the Linux Foundation’s Executive Director, said, “We don’t negotiate with trolls. Instead, with United Patents, we go to the PTO and crush those patents.” This, “We destroy the very asset that made patent trolls’ business work.” This approach works. “90% of the time, we’ve been able to go in there and destroy these patents.”
How to Help
In a KubeCon press conference, Zemlin added, “We’re a regulatory compliance organization. In other words, we are the roadies and the janitors to the rock star engineers who create this code. Part of being a roadie is dealing with patent trolls.”
You can help clean up this mess. The CNCF has announced a patent troll bounty program, Cloud Native Heroes Challenge. The CNCF and its allies are asking developers to find evidence of preexisting technology, aka prior art, that can be used to destroy bad patents.
This could be open-source documentation (including release notes), published standards or specifications, product manuals, articles, blogs, books, or any publicly available information. Specifically, they’re looking for prior art from June 13, 2013, or earlier, showing that the 823-B1 patent should not have been granted because it doesn’t describe a unique, new technology.
All entrants who submit an entry that conforms to the contest rules will receive a free “Cloud Native Hero” t-shirt that can be picked up at any future KubeCon+CloudNativeCon. The person who comes up with proof that can be used to put an end to the 832-B1 will also receive a $3,000 cash prize.
With that proof in hand, Joanna Lee, the CNCF’s VP of Strategic Programs & Legal, added that United Patents explained in the same press conference Unified Pantes will challenge the patent in the courts. In addition, “they will crowdsource prior art, so it’s available to any company that received a cease and desist letter from the troll. The company can then look at that prior art and say, ‘Hey, why should I pay you licensing fees?'”
In short, Lee continued, “It’s a two-fold approach. It’s both directly challenging the patents, making the prior art publicly available, and then leveraging the power of the community.”
This works, she concluded, “Because if you think about the economics of how trolls win. They send decease and desist letters to thousands of companies, and each of these companies individually has to foot the entire cost.
Now, we’re leveraging the community to come up with prior art research, and they are the domain experts. Unified has developed some really great tools to lower the cost of challenges, including some really great AI tools for constructing claim charts and such. It really changes the economic game that trolls are playing. And it’s very powerful. It’s very effective.”
Keith Bergelt, OIN’s CEO, which started crowd-sourcing prior open-source art to block patent trolls over 15 years ago with the Linux Defenders program, agrees. In an interview, Bergelt said, “We believe that crowd-sourcing prior art is an important way for open source projects to protect themselves. We are pleased that CNCF is leveraging the knowledge of its membership to focus its efforts specifically on open source cloud technologies, as its membership will be committed to finding prior art and will be well-positioned to leverage their deep knowledge of this technological space.”
If you can help end this patent troll’s attack on Kubernetes, the CNCF wants to hear from you. Intellectual property issues are probably far afield from what you do in your day job, but your knowledge and records may be exactly what’s needed to end 823-B1 and the legal threats springing from it.
The post CNCF Sics Developers on Kubernetes Patent Trolls appeared first on The New Stack.
Patent trolls are shaking down Kubernetes developers and users, so the CNCF and friends are going after them.