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Google vows not to sue over certain patents for open source

To start, the online giant today said it has identified 10 patents related to MapReduce, which allows users to analyze large data sets. It won't sue over those patents unless first attacked.

Shara Tibken Former managing editor
Shara Tibken was a managing editor at CNET News, overseeing a team covering tech policy, EU tech, mobile and the digital divide. She previously covered mobile as a senior reporter at CNET and also wrote for Dow Jones Newswires and The Wall Street Journal. Shara is a native Midwesterner who still prefers "pop" over "soda."
Shara Tibken
6 min read

Google today is "taking a stand on open source and patents," vowing not to sue anyone on specified patents unless first attacked.

The company, which today announced its Open Patent Non-Assertion Pledge, said to start with, it has identified 10 patents related to MapReduce, a model for processing large data sets. It has pledged not to sue any user, distributor, or developer of open-source software based on patents related to MapReduce.

Duane Valz, Google senior patent counsel, said in a blog post that Google wants to ensure open source software remains open:

"At Google we believe that open systems win. Open-source software has been at the root of many innovations in cloud computing, the mobile web, and the Internet generally. And while open platforms have faced growing patent attacks, requiring companies to defensively acquire ever more patents, we remain committed to an open Internet -- one that protects real innovation and continues to deliver great products and services."

Patent-related litigation has been rampant in the technology sector, particularly in the fast-growing smartphone and tablet markets. Apple and many other companies, including Google partner Samsung, have been suing each other over infringement, and Apple in August won its case against Samsung. Other companies have been making acquisitions -- like Google's purchase of Motorola Mobility -- to help build their patent arsenals.

So why care about MapReduce? Well, it was first developed by Google but has many open-source offshoots, including Hadoop. The technology, which gives users the ability to quickly analyze huge sets of data, is supported and used by Yahoo, Cloudera, and many other companies. As organizations create more data, specialized technology is required to make sense of all the information. Without context or analysis, big data is pretty worthless.

Google said today that it plans to expand the set of patents covered by the pledge to other technologies over time.

It also said it hopes the OPN Pledge will serve as a model for the industry, and it's encouraging other patent holders to adopt the pledge or a similar initiative. Google said leading companies and organizations such as Cloudera and IBM agree and endorse the OPN Pledge.

Google believes the pledge will provide more transparency around patent rights, and Google's pledge will expand to all open-source software that relies on the patents, not just a specific project. In addition, Google said its pledge remains in force for the life of the patents, even if it transfers them, and the pledge may only be terminated if a party brings a patent suit against Google products or services or directly profits from such litigation.

The company added that along with the OPN Pledge and other similar initiatives, it continues to support patent reforms that would "improve patent quality and reduce excessive litigation."

Here's the full text to Google's Open Patent Non-Assertion Pledge:

Open Patent Non-Assertion Pledge
Google is committed to promoting innovation to further the overall growth and advancement of information technology and believes that Free or Open Source Software is a very important tool for fostering innovation. Google is therefore pledging the free use of certain of its patents in connection with Free or Open Source Software on the following terms:

"Free or Open Source Software" means any software that is licensed or otherwise distributed to the public in such a way that satisfies any version of "The Open Source Definition" provided by the Open Source Initiative at opensource.org/osd or any version of "The Free Software Definition" provided by the Free Software Foundation at gnu.org/philosophy/free-sw.html.

"Pledged Patents" means the specific patents listed by Google at the following URL designated for purposes of this Pledge: www.google.com/patents/opnpledge/patents/. Google may supplement this list of patents from time to time in its discretion.

"Pledge" means the promise set forth in the first two paragraphs under "Our Pledge."

Our Pledge
Google promises to each person or entity that develops, distributes or uses Free or Open Source Software (a "Pledge Recipient") that Google will not bring a lawsuit or other legal proceeding against a Pledge Recipient for patent infringement under any Pledged Patents based on the Pledge Recipient's (i) development, manufacture, use, sale, offer for sale, lease, license, exportation, importation or distribution of any Free or Open Source Software, or (ii) internal-only use of Free or Open Software, either as obtained by Pledge Recipient or as modified by Pledge Recipient, in standalone form or combined with hardware or with any other software ("Internal-Only Use"). The preceding Pledge does not apply to any infringement of the Pledged Patents by hardware or by software that is not Free or Open Source Software, or by Free or Open Source Software combined with special purpose hardware or with software that is not Free or Open Source Software (except Internal-Only Use).

It is Google's intent that the Pledge be legally binding, irrevocable (except as otherwise provided under "Defensive Termination" below) and enforceable against Google and entities controlled by Google, and their successors and assigns. Thus, Google will require any person or entity to whom it sells or transfers any of the Pledged Patents to agree, in writing, to abide by the Pledge and to place a similar requirement on any subsequent transferees to do the same.

The Pledge is not an assurance that any of the Pledged Patents cover any particular software or hardware or are enforceable, that the Pledged Patents are all patents that do or may cover any particular Free or Open Source Software, that any activities covered by the Pledge will not infringe patents or other intellectual property rights of a third party, or that Google will add any other patents to the list of Pledged Patents. Except as expressly stated in the Pledge, no other rights are waived or granted by Google or received by a Pledge Recipient, whether by implication, estoppel, or otherwise.

Defensive Termination
Because our Pledge is a promise not to assert certain Google patents without requiring any payment from a Pledge Recipient, we think it is only fair that we condition the Pledge upon the Pledge Recipient (and its affiliates) not asserting or profiting from the assertion of patents against Google, its affiliates, or its products or services. Accordingly, Google reserves the right to terminate the Pledge, to the extent Google deems necessary to protect itself, its affiliates, or its products and services ("Defensive Termination") with respect to any Pledge Recipient (or affiliate) who files a lawsuit or other legal proceeding for patent infringement or who has a direct financial interest in such lawsuit or other legal proceeding (an "Asserting Party") against Google or any entity controlled by Google or against any third party based in whole or in part on any product or service developed by or on behalf of Google or any entity controlled by Google.

Any Defensive Termination by Google with respect to an Asserting Party shall have the same effect as if Our Pledge was never extended to such Asserting Party in the first instance. Google, in its sole discretion, shall determine the manner and terms, if any, by which rights under Pledged Patents may be extended to an Asserting Party after that Asserting Party's lawsuit or other legal proceeding is permanently dismissed, terminated or withdrawn in writing.

Mistaken Assertion
Should Google ever initiate a lawsuit or other legal proceeding for patent infringement based on software which is not the subject of a Defensive Termination, and then receive written notice from the party against whom such lawsuit or other legal proceeding has been filed providing sufficient information for Google to reasonably determine that such software in fact satisfies the requirements of the Pledge, then Google will use reasonable efforts to withdraw such lawsuit (or the applicable claims therein) or move to terminate such other legal proceeding (or the applicable portions thereof) within sixty (60) days after receiving such written notice.