Gnome settles Patent litigation: Amanda Brock, CEO OpenUK interviews Neil McGovern, ED of Gnome Foundation and Board Director at OpenUK

Amanda Brock
22nd May 2020

“Firstly, Congratulations Neil and very well done. This is probably the best possible result Gnome could have had right?

“I believe so, yes. We have managed to secure a more certain future for all of open source software and sent a very strong message to other patent holders that attempts to bring suit against us will be at best, futile.”

The Open Source Community response to Rothschild, I am resisting calling them a troll, was probably a bit of a shock to Rothschild. Can you tell us a bit about it and the amount raised from so many people and organisations?

“This has happened before, when Groupon tried to register GNOME as a trademark, despite us already holding it. This time we managed to raise over $150,000 from over 4,000 individual donors. One of the strengths of the community is how passionately we care about what we do, and how we rally around each other when there’s trouble.”

You must be really proud to have achieved this result?

“Absolutely! Although the patent hasn’t been invalidated, we have secured a bigger prize – the protection of open source software from a large non-practicing entity.”

Sherman and Sterling are a huge global law firm and acted as Gnome’s
pro bono legal counsel? How did that come about?

“It came a little out of the blue! I was flying back from GUADEC (our annual conference) when this all kicked off, and when I landed, I had an email from Matt Berkowitz offering pro-bono representation. They had been monitoring patent filings and saw this one, so reached out to us.

I’m incredibly grateful to the team at Shearman: Matt Berkowitz, Kieran Kieckhefer, Joy Wang and Larry Crouch. We, as an open source community owe them a debt of gratitude.”

Am I right in thinking that you had declined a settlement from Rothschild when you decided to counter sue?
“Yes. They offered to let us settle for $75,000, for which they would drop the case and give us a licence to carry on developing Shotwell. This would have been simple to do so; it would have caused less work, cost less money, and provided the Foundation a lot less stress. But it also would be wrong. We needed to send a message that open source software should never be subjected to suits such as this.”

You were already working with S&S when you decided to do that. It would have taken nerves of steel and been a risky but important decision. Can you tell us more about why you did this and why it mattered so much to not take the first offer, what more did you achieve by holding out?
“Apart from the cash, the original offered settlement would only apply for this single patent, only for GNOME and would be confidential!

Instead, we now have coverage for over 100 patents, and patents that Leigh Rothschild may come to win in future.

This licence applies to all opensource software and its users.

Additionally, if you’re an author of a work of opensource software, you can email director@gnome.org and I’ll send you the agreement so you can verify this all for yourself.”

The statement on the Gnome site today reads “
Why is this tied to the OSI?

“We needed an easy way to define what open source software is, and OSI has that definition already in place. They’ve done the licence reviews and have a list of what is and what isn’t open source software.”

Obviously, I have a long-standing relationship with Open Invention Network, the world’s biggest defensive patent pool ever, which protects Linux and adjacent open source. Being part of that as a licensee is good house- keeping for all companies, organisations or individuals using or creating open source software – and who on the planet isn’t doing one of those… But many people won’t know the role that OIN plays in supporting those in open source who are attacked by patent aggressors. Can you tell us more about the interaction between Gnome and OIN?

“Sure, GNOME is a member of OIN. Although in this particular case, we couldn’t leverage the defensive patent pool, they were very helpful in seeking out and providing prior art to our legal team. This helped strengthen our position and provide reassurance.”

What advice do you have for anyone approached by a patent aggressor, whether a non practising entity or a company asserting its patents and would your advice differ between the two?

“You need to talk to a lawyer.

Hopefully you’ve already taken some
defensive measures, such as joining OIN and the LOT Network
(https://lotnet.com/).

You hadn’t been in your role at Gnome long, when this came along, how did it impact your plans?
“It’s caused a large amount of stress and late nights. Unfortunately, I’m based in the UK, and the case was proceeding in California. This meant that with the difference in timezones, I was often on phone calls at past midnight for the last 10 months. However, I believe the end result shows it was worth it”

You’re part of the Board at OpenUK and working with me, developing, the UK’s leadership in Open technology. What advice do you have for people in the UK who are advocates and why is OpenUK important?
“Quite simply: get involved!

We have a huge opportunity to influence government and organisations, especially with the uncertainty created by Brexit. The UK is one of the world leaders in open source, and we need to make sure we continue to push open source software, standards, hardware and data.”

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