Facebook, HP, and the OpenStack project have joined the Open Invention Network (OIN), a consortium of organizations intent on protecting Linux and related open-source software from legal attack.

Few days ago, the OIN announced that in the first quarter, 74 new organizations joined its “community” as licensees, including Fujitsu, Rackspace, and Juniper as well as Facebook, HP, and OpenStack, the latter of which is an open source “build-your-own-cloud” group co-founded by Rackspace. Licensees agree not to use their Linux-related patents against each other, and they receive free access to a collection of additional patents purchased by the consortium as a whole.

The OIN was founded in 2005 by IBM, NEC, Novell, Phillips, Red Hat, and Sony. It now owns 300 Linux-related patents, and through its licenses, it has access to more than 2,000 others. The idea is to allow its members to continue to “innovate” atop Linux without worrying about the threat of patent-related lawsuits. Google is also an OIN member. In 2007, it became the organization’s first “end-user licensee”, meaning it didn’t sell, distribute, or develop Linux code. At the time, it only used Linux within the company. But it has since launched Linux-based products such as Android and Chrome OS.

The irony here is that Oracle is a member as well. In signing the OIN’s royalty free licensing agreement, members vow not to assert their patents against what’s called “the Linux System”. But this didn’t stop Oracle from suing Google over its use of Java in Android, which is built on the Linux kernel.

Even before Oracle’s suit, patent watcher Florian Muller and others criticized the organization, saying it doesn’t really provide the type of protection you might assume that it does. “I’ve always said that there’s no evidence it has ever helped any company (the latest example is Salesforce, which apparently pays royalties to Microsoft for a variety of patents including some that rely on Linux)…The OIN doesn’t truly protect all of FOSS but only an arbitrarily defined list of program files,” Muller said when Oracle’s suit arrived.

“Oracle’s lawsuit against Google is the strongest evidence that my concerns about the Open Invention Network are well-founded. Both Oracle and Google are OIN licensees, so in theory there is a non-aggression pact in place between them, but everyone can see that Oracle sues Google anyway because the OIN’s scope of protection is too narrow.”

Paradoxically, Google — which is fighting lawsuits against Linux-based Android — is moving up from licensee status to an associate membership, joining Canonical of Ubuntu Linux fame as the only companies with the second-highest level of OIN membership. Yahoo also joined as a licensee late last year. One major threat to Linux — the SCO vs. Novell case — has gone by the boards since the Open Invention Network was founded, but threats remain, according to OIN CEO Keith Bergelt.

Microsoft hasn’t pursued its claim that Linux and open source software violate 235 Microsoft patents, but “behind the scenes, they’re still very active,” Bergelt said. If Windows desktop market share ever erodes, Microsoft could become more lawsuit-happy. “They will continue to represent a potential source of antagonism toward Linux,” he said.

But Microsoft is not the only company that potentially threatens Linux, according to Bergelt. “It’s really just anybody who supports proprietary platforms and has a large [patent] portfolio that it likes to continue to use to be able to discourage choice,” he said. “There will always be those who will be looking at Linux potentially threatening their livelihood, their way of life.”

The OIN’s goal is not to prevent legitimate use of patents to secure royalties when others infringe upon inventions, Bergelt said. The goal is to foster an open environment in which people can innovate without being subjected to frivolous claims, and prevent the tech industry form being dominated by “incremental innovation, which is a euphemism for mediocrity,” he said.