A Look into Google's Open Patent Non-Assertion Pledge: Insights on Google’s AI Patents [3]

Google’s Open Patent Non-Assertion Pledge (OPN) is a pledge that explicitly declares which of Google’s patents are licensed to users as part of the Apache Open Source License under certain conditions.

 

The OPN addresses the issue surrounding patents that we raised in the previous article of this series. Pre-existing open-source licenses refer to patents simply in general terms, thus it is difficult for software users to determine which patents are covered and which patents are excluded from the license.

 

Google's OPN exists as a supplement to the Apache license and explicitly lists those patents that are related to the relevant open source software and is included under the Apache license. However, the license for the patents is not unconditional, and the OPN includes provisions that permit Google to enforce these patents for defensive purposes. That is, if any user of Google’s open source software sues Google for patent infringement, Google reserves the right to cancel the license granted under the OPN and enforce its own patents against said user.

 

Nevertheless, the key point of the OPN that Google advertises is that the OPN allows users to use Google’s open source software more freely without having to worry about infringing Google’s patents.

 

Screenshot of the Open Patent Non-Assertion Pledge page

 

Google summarizes the benefits of the OPN as follows:

 

• “Patent holders determine exactly which patents (and related technologies) they wish to Pledge and offer the public transparency in the process”
• “Allows for defensive termination relative to a broader range of incoming patent attacks.”
• “Non-assert promise and defensive use only terms designed to remain in force for the life of the patents, even if sold or transferred.”

 

To elaborate on the first benefit, OPN purportedly resolves the problem that can arise when a user cannot easily be informed simply by referring to the provisions of the license whether or not they are allowed to use a certain patent. Thus, Google is saying, “We hereby specify which patents we will not enforce (while reserving the right to enforce them under certain circumstances).” By stating and specifying the patents it will not enforce, deep learning developers would be less confused about the key deep learning patents owned by Google.

 

The second benefit is that the OPN still allows for the enforcement of the pledged patents for defensive purposes. In other words, the patented technology is accessible to open source software users but Google does reserve the right to enforce its patent rights for defensive purposes. That is, the patent will not be wielded as a weapon of attack but if Google is attacked by a third party, Google will not remain silent.

 

The third benefit is that even if these patents are sold to other companies, open source software users remain protected. These days, business transactions which involve buying and selling of patents are common and some companies design a business model based on patent transactions. With the goal of profiting from a financial settlement, these so-called “patent trolls” strategically purchase patents from bankrupt companies or discontinued businesses.  Afterward, the “patent trolls” use these to sue other companies for infringement. Ultimately, they make profits by securing patents of the companies that have filed for bankruptcy. The OPN could obviate the risk faced by users of open source software of being sued for infringing patents that they believed were free to use, as a result of a sale of said patents.

 

Google’s ongoing dispute with Oracle demonstrates the importance of the aforementioned third benefit. Oracle is a company that knows how to skillfully and strategically utilize its intellectual property rights. In recent years, Oracle has been actively enforcing its intellectual property rights in Java, following its acquisition of Sun Microsystems. The OPN offers users protection.

 

Now that Google has decided to declare a list of patents for which it grants free licenses to open source users, we shall have to check whether or not the key patents related to deep learning are included in the list.

 

A list of patents declared by Google can be found in the following link: https://www.google.com/patents/opnpledge/patents/.

 

However, to our surprise, this list does not include patents related to deep learning technology.

 

To avoid any misunderstanding, this is not to say that Google has expressed a willingness to enforce its rights existing in its deep learning patents.

 

Perhaps, the list could be under internal review and in the process of being updated.

 

In any case, TensorFlow users do not have to worry about all of Google's deep learning patents despite the fact that there are no deep learning patents on that list. The reason lies in the fact that the Apache 2.0 license, which applies to the TensorFlow framework, grants licenses for those patents essential to the use of the software without explicitly mentioning the relevant patents in the OPN.

 

If the relevant deep learning patents are listed in OPN, it would certainly be convenient and reassuring to users. However, at this point, we must review TensorFlow's license regulations carefully and determine whether or not a patent can be used freely.

 

In the final article of this series, we will return to one of the issues raised in our first article and analyze an example patent to determine whether it is free to use under the terms of the Apache 2.0 license.

 

A complete analysis of all relevant patents would, unfortunately, go beyond the scope of this series of articles, but we hope that the example discussed in our final article will provide some useful guidance.