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Red Hat Makes Patent Promise 180

Posted by michael from the cross-our-heart dept.
colonel writes "In a followup to an earlier story about Red Hat filing for software patents, a "promise" has appeared on RedHat's website stating that they do not intend to pursue patents against software licensed under a specific set of licenses. It's not binding in perpetuity, and some licenses are notably absent in the list of approved licences, like the LGPL. But, at least Red Hat's made their intentions clear now."
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Red Hat Makes Patent Promise More

Red Hat Makes Patent Promise

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  • MS (Score:4, Interesting)

    by davemie ( 206516 ) <cosmo@s[ ]et.ie ['kyn' in gap]> on Thursday May 30, 2002 @07:19AM (#3608201) Journal
    I know of lots of other companies [microsoft.com] that gave promises before and changed their minds when it suited them!

    • Re:MS (Score:4, Insightful)

      by Yorrike ( 322502 ) on Thursday May 30, 2002 @07:25AM (#3608213) Journal
      True, however, this isn't Microsoft, it's Redhat, and they're not a monopoly.

      Redhat has competition in the OSS industry and it won't take much for anyone running Redhat to switch to Mandrake, Debian, Slackware, Suse or any of the other distros (not to mention the *BSDs)

      Redhat knows that the people who run their OS are smart and more than often, open source advocates. It would be foolish to piss those people off.

      • Re:MS (Score:5, Insightful)

        by kinkie ( 15482 ) on Thursday May 30, 2002 @07:40AM (#3608245) Homepage
        It's not just the people who use their OS, but also the people who write their OS.
        • It's not just the people who use their OS, but also the people who write their OS.

          Does Alan Cox still work for them?

          Even those people that buy redhat can just not buy redhat if they dont like the policies. They can download redhat (well, thread linux) for free.

      • Re:MS (Score:3, Insightful)

        by tomstdenis ( 446163 )
        True, however, this isn't Microsoft, it's Redhat, and they're not a monopoly.

        Technically MSFT wasn't a monopoly in the beginning either. They had IBM DOS, OS/2 and MacOS [finder, whatever] to compete with in the early days.

        Who knows, perhaps 10 years from now we will be RH bashers instead?

        Tom

      • Re:MS (Score:5, Insightful)

        by jmichaelg ( 148257 ) on Thursday May 30, 2002 @08:03AM (#3608309) Journal
        He was using Microsoft as an example of companies that change their mind. There are plenty more. Think Yahoo ( we won't sell your id), Hewlett Packard (The HP3000 has a long life ahead of it), Yahoo again (we know you opted out but you'll have to do it again because we didn't like it), AT&T ( yes, we sold you megabit cable access but we didn't expect you to use it so you can't), Tivo (that machine you thought you bought from us is really ours to use as we wish).

        The original parent post was right on - if Redhat sees a need to change their mind, they will - their post notwithstanding. Or go even deeper and read their post with a modicum of scepticsm and you'll see plenty of wiggle adjectives that give them leeway to do as they wish.

        • Re:MS (Score:3, Insightful)

          by Yorrike ( 322502 )
          Notice the first word in my post: "True". I am in agreement, I'm just trying to say that in the current OSS distribution environment, it would be foolish for RH to try and "pull a Microsoft".

          • Re:MS (Score:3, Insightful)

            by jmichaelg ( 148257 )
            Expecting RH to be a moral, upright corporate citizen because otherwise they'll piss off a lot of smart geeks doesn't seem to carry much weight. Witness Blizzard squashing bnetd - /. carried a fawning WC-III review a few weeks after Blizzard filed suit. How many people didn't buy a PIV because of Intel's idiotic suit against "Yogi Inside?"

            If at some point, RH thinks they can use their patents to kill other distros I don't doubt they'll try - pissed off geeks or no. Moral suasion doesn't appear to work these days.
            • I dont doubt that RH will do the right thing while they can.. but you have to wonder what they will do if they ever have financial problems. What will they do if they are on the brink of collapsing? At that point, they really wouldnt have anything to lose - surely they will try to get as much money as they can while they can - and damn the consequences.

      • Re:MS (Score:5, Insightful)

        by Mark Bainter ( 2222 ) on Thursday May 30, 2002 @08:44AM (#3608460)
        This is true, and because of their history I'm inclined to believe that's what they intend.

        Unfortunately, we have absolutely no guarantees. This is only what the redhat of today intends, and the people currently running it won't be running it forever. Some future nimrod who ends up running redhat might see things differently, or be forced to see things differently by a board of directors.

        Their exclusion of some very valid licenses (eg lgpl and bsd) concerns me as well. Does this mean they /will/ go after people who use their "patents" in their lgpl/bsd licensed software?
        Is this yet another attempt to scare people into using the GPL?
        • Does this mean they /will/ go after people who use their "patents" in their lgpl/bsd licensed software?

          Depends who. A random person, or a company. If a company [microsoft] wrote a bsd implementation of the patents, then included it in some proprietry software, that would be bad.

          If software patents are here to stay, the more that are in the hands of competitive non monopoly open source companies, instead of microsoft/aol etc, the better.
          • Depends who. A random person, or a company. If a company [microsoft] wrote a bsd implementation of the patents, then included it in some proprietry software, that would be bad.

            It would be bad for Microsoft to license things under a BSD license? ... I'd say that's actually an improvement over the license they use for most things they make.

            So let me get this straight, software patents are bad, unless they are being used to hurt proprietary software companies? Using software patents only reinforces their legitimacy. While I think it's perfectly reasonable to hold them defensively, so someone else can't patent it and then use it against you, but not to use those patents actively against anyone, including Microsoft.

            You don't effect political change on a topic by taking advantage of it for your own personal benefit while decrying it out the other side of your mouth.

            If software patents are here to stay, the more that are in the hands of competitive non monopoly open source companies, instead of microsoft/aol etc, the better.

            Hrm. Yes it's better if those patents are in the hands of trustworthy people, but I'm not sure a corporation in any form qualifies. If it was a single person I'd have an easier time, as their ideals are less likely to change. Even then I'd be concerned, profit is a strong motivator.

            I'm not sure that there is a "right" answer to this problem, and it may be that companies like redhat filing these patents is the best we can hope for, but I'd be happier if there were a way that we could form a NFP organization analgous to the FSF that would hold the ownership of patents for free software innovations. The group existing with a very specific charter regarding their use, or rather lack of it. Perhaps with at most a very small specified licensing charge for proprietary use to fund the filing of patents/etc.

            • lots of good points. software patents are bad, redhat is the better of two evils.

              I'm under the impression a single person cant patent an idea thanks to expense, but I'm woried about your line: "Perhaps with at most a very small specified licensing charge for proprietary use to fund the filing of patents/etc. "

              btw: Can you "public domain" a patent? Prior art doesnt mean squat to most patents, so you'd have to patent then deliberatly destroy the patent
              • I'm under the impression a single person cant patent an idea thanks to expense, but I'm woried about your line: "Perhaps with at most a very small specified licensing charge for proprietary use to fund the filing of patents/etc. "

                Yeah, that's a really dangerous line to walk. However, an organization responsible for patenting concepts/methods/etc for defensive purposes has to hae a way to pay for filing patents. It would simply have to be very carefully defined within the bylaws of the organization. I'm not talking about per-use charges here, but rather a company would pay x amount of dollars in a one time fee to gain the license for use in proprietary software. Any software licensed under any free license with source available is free, but otherwise you pay the fee. Perhaps only until the cost of filing the patent is paid for? At that point we stop charging. Or, maybe not, and the money goes into a fund to defend the patents held if necessary.

                Ideally, we'd have people volunteering their time/etc to file patents for us, and then we wouldn't charge anyone anything, but would rather make the patent open for use. In the "public domain" so to speak. And yes, that can be done, though unfortunately you can reverse your thoughts on that later. Which is why it'd need to be codified in the bylaws of the organization in perpetuity. Unfortunately, I think we can see from past experience that this is even more wishfull thinking than my idea is.

      • Re:MS (Score:4, Insightful)

        by Bouncings ( 55215 ) <.moc.redniknek. .ta. .nek.> on Thursday May 30, 2002 @08:49AM (#3608484) Homepage
        Redhat has competition in the OSS industry
        You're missing the point. The benefit of Open Source is nill when it comes to software patents. If Red Hat can sue BSD because they violated a software patent, there is nothing the open source community can do to defend that.
        Redhat knows that the people who run their OS are smart and more than often, open source advocates. It would be foolish to piss those people off.
        First of all, they already have pissed off those people, several times. Slashdotters are quick to boycott something they wouldn't buy anyway. But if it's something we actually want, a boycott just doesn't seem like the answer. Case in point: Star Wars -- inspite of the fact that this film exists purely to fund the companies that gave us the DMCA, slashdotters went in droves to see it.

        Secondly, Red Hat's income no longer comes from selling CDs to hobbiests. Take a look at their recent earnings report [redhat.com]. $15.7 million of that $18.6 million in revenue comes from "enterprise" sales. Meaning consulting and training, mostly. Red Hat makes no secret that they intend to become some kind of "e-business player" and is trying very hard to shed its image as a hobbiest's company -- something most companies involving Linux are doing too.

        Please don't dismiss this so quickly. Red Hat is changing my friend, and fast.

  • Good show, Redhat. (Score:5, Insightful)

    by zCyl ( 14362 ) on Thursday May 30, 2002 @07:21AM (#3608205)
    Publicly stated corporate policies pledging good behavior toward intellectual property should be as commonplace as privacy policies have become.

    • Re:Good show, Redhat. (Score:4, Insightful)

      by Brightest Light ( 552357 ) on Thursday May 30, 2002 @07:45AM (#3608253) Journal
      Publicly stated corporate policies pledging good behavior toward intellectual property should be as commonplace as privacy policies have become.

      ooooohhh, you mean like the ones that are are "subject to change without notice (read: as soon as we need the money badly enough, we'll sell your personal data) ?"

    • I agree, it is a positive move for Red Hat.

      I don't mean to criticize them, but sometimes I do wish that people would spend as much time trying to do something about current patent law as they do "playing the patent game". Sure, there's the reasonable realistic drive to try to make the patent game work on free software's terms, but the system is so broken sometimes I'm not entirely sure that's wise or possible.

      Red Hat though seems to be making a lot of their money these days on server machines. The suits buying and running these servers don't give a damn about Red hat's policy either way on patents - I wonder why they did this in terms of marketing. Which particular demographic they are appealing to?

      Of course, you might say none - they're just doing the right thing. But the cynical part of me wonders... :)

      • Re:Good show, Redhat. (Score:3, Insightful)

        by PhilHibbs ( 4537 )
        It may be that they are doing it for precisely the reason that they give in the policy statement; that is, for defensive purposes. Someone hits them with a patent infringement case, they hit back with their portfolio.

    • Re:Good show, Redhat. (Score:3, Interesting)

      by Bouncings ( 55215 )
      Patent policy. Privacy policy. Why not add a murder policy?

      Having policies for exactly what unethical acts you plan to commit does not excuse them, or even seem to prevent them. In the past few years:

      • The number of 'privacy policies' on the web has gone from zero to what? Maybe millions?
      • The number of cases where consumer privacy has been infringed on has gone from very few to common place.
      Consumers can't be expected to read the "end user license agreement," "patent policy," and "privacy policy" from every company we ever buy a product from. That's like having to read the "spider eggs in burgers" policy before you eat at Wendy's.

      Enough with the 'policies' already.

    • Publicly stated corporate policies pledging good behavior toward intellectual property should be as commonplace as privacy policies have become.

      (Score:5, Insightful)???

      Maybe it's just me, but I think that was supposed to be a joke.
      We all know privacy policies worth as much as the paper they're printed on.

      -

  • LGPL not suitable (Score:5, Insightful)

    by Tet ( 2721 ) <.ku.oc.enydartsa. .ta. .todhsals.> on Thursday May 30, 2002 @07:21AM (#3608206) Homepage Journal
    some licenses are notably absent in the list of approved licences, like the LGPL.

    This is quite deliberate. It's not possible to approve LGPL without opening up a hole that allows J. Random Megacorp to make an LGPL licensed librhpatents.so, which lets them use the patents with closed source proprietary apps. My only complaint with Red Hat about this is that they haven't made it binding in perpetuity.

    • Re:LGPL not suitable (Score:5, Insightful)

      by zCyl ( 14362 ) on Thursday May 30, 2002 @07:28AM (#3608218)
      My only complaint with Red Hat about this is that they haven't made it binding in perpetuity.

      They're trying to achieve an open environment by using laws that have been designed to enforce a closed environment. Of course they can't make it binding in perpetuity, because the laws they're referring to are moving targets, and if patent laws change, or court interpretations of them change, Redhat may have to change its patent policy just to maintain the same good intention that it had before.

      Yes, there's a potential for future abuse, but this is unavoidable. Better that Redhat not lock itself into a promise that could potentially defeat the purpose of the promise.
      • Of course they can't make it binding in perpetuity, because the laws they're referring to are moving targets, and if patent laws change, or court interpretations of them change, Redhat may have to change its patent policy just to maintain the same good intention that it had before.

        That's only partly true. They could (and IMHO, should) have granted a permanent royalty free license to use the patents to anyone releasing code under their approved licenses. Yes, they may need to change their patent policy in the future, but that will only affect licensees from that point onwards, not those who had already licensed the patents. As it stands, a GPL package could use the patented ideas, and in a few years time, RH could be bought out by a company that could then revoke the ability to use the patents. That's not a good situation for the free software community to find itself in...

      • Of course they can't make it binding in perpetuity, because the laws they're referring to are moving targets, and if patent laws change, or court interpretations of them change, Redhat may have to change its patent policy just to maintain the same good intention that it had before.

        If their intentions are good, they can always give people additional licensing choices later. Committing today to letting GPL'ed programs use their patents in perpetuity would not change that.

        Yes, there's a potential for future abuse, but this is unavoidable.

        Oh, it is quite avoidable. And it is quite necessary. RedHat is a corporation, and their legal responsibility is to maximize shareholder profit. Unless they make binding commitments now, that may well entail using those patents against free software in the future.

    • This is quite deliberate. It's not possible to approve LGPL without opening up a hole that allows J. Random Megacorp to make an LGPL licensed librhpatents.so, which lets them use the patents with closed source proprietary apps. Why is this a problem? The company is not, even then, making money off of RedHat's patented software; they still have to distributed the LGPLed library (and any modifications to it) freely.

      I can see how this would be a valid argument against including the BSD/MIT/etcetera licenses in the list (though I'd really rather RedHat reassure us that it won't sue FreeBSD if they make a RHN look-alike or something), but I don't see how it applies to the LGPL.
    • It's not possible to approve LGPL without opening up a hole that allows J. Random Megacorp to ... use the patents with closed source proprietary apps

      I really wish Red Hat hadn't restricted the licensing of its patents to free software. I'd much rather see it form a defensive patent pool, as described in "mixing patent and copyright [slashdot.org]."

      Regardless of its seemingly noble intentions, Red Hat is positioning itself as a patent aggressor. Licensing only to (a subset of) free software is not defensive; it's offensive.

    • It's not possible to approve LGPL without opening up a hole that allows J. Random Megacorp to make an LGPL licensed librhpatents.so, which lets them use the patents with closed source proprietary apps.

      One could easily license the patents for use where the program consists entirely of free software. As soon as you link in a proprietary byte of code, the resulting work is not covered by the permission grant. Just about any reasonable definition of free software would do, since accidentally licensing demo-ware or something should not be a problem if the patent is for defensive purposes only. It would not even be necessary to create a list of approved copyright notices.

      Theoretically, this should be easier to write under patents than under copyrights, since patents restrict end use, while copyrights are only supposed to restrict a few actions, like copying and live performance.

      I am not a lawyer. So, please do not use this message as legal advice.

    • It's not possible to approve LGPL without opening up a hole that allows J. Random Megacorp to make an LGPL licensed librhpatents.so, which lets them use the patents with closed source proprietary apps.

      And your point is what exactly?

      RedHat can, after all, use their patents in their proprietary software. So, it's OK for RedHat to (potentially) make proprietary software and be considered defenders of open source but not for others? Sorry, that's a deal I'm not willing to accept.

      There may be good uses for software patents in defense of free software. But RedHat hasn't demonstrated that they are using software patents that way.

    • The mapping between patent licences and software licences does not have to be 1:1. They can say "These patents are free for use in LGPL software, so long as that software is only linked to applications licenced under one of our approved licences". They could even disallow calling of GPL'd dynamic libraries from software that is not under an approved licence. I'm not expressing an opinion on whether this is a good idea or not, just tossing the idea into the ring.

  • Doesn't matter (Score:1, Insightful)

    by Anonymous Coward
    The GPL requires anyone holding a patent on the software to allow others to freely use/modify it. From the GPL license:
    Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
    The only thing this patent prevents is from others creating proprietary versions of the technology in question; which, IMO, is a Good Thing(tm). In fact, in the thread about this on the LKML someone brought up that the FSF even encourages doing this.
  • ...suprised that the LGPL didn't make it to their list. the LGPL allows for other comercial products to be linked to a GPL libary without providing the source(comercial product). it's not in redhat's interest that other SW firms can use their patent in products, as long as they link to it from a LGPL libary.

  • Meh. (Score:4, Insightful)

    by szcx ( 81006 ) on Thursday May 30, 2002 @07:29AM (#3608220)
    This'll be policy for as long as the shareholders allow it. The moment they get a whiff of Big Money to be made enforcing the patents, they'll about-face.

    • Re:Meh. (Score:3, Insightful)

      by Zathrus ( 232140 )
      Yes, because we all know, there's tons of money to be made by enforcing patents against open source software.

      I mean, just think of how much you could rape the OpenOffice.org team for alone. I'm sure you could squeeze out at least four or maybe even five dollars.

      • Re:Meh. (Score:2, Funny)

        by kraf ( 450958 )
        > I'm sure you could squeeze out at least four or maybe even five dollars.

        You think you're funny, but that's the actual yearly budget of Debian.
    • Yeah. It's not like RedHat have been rigourous about keeping all their in-house distro tools GPLed; why no, like SuSE, Caldera, and other scumbag Linux distros, they have a long and dishonourable history of following short-term, closed IP strategies!

  • Apache Software License not included (Score:3, Interesting)

    by Anonymous Coward on Thursday May 30, 2002 @07:33AM (#3608228)
    What about the The Apache Software License?? This would be more important to a lot of the work going on at the moment particularly on XML, it is the only real alternative to the proprietry stuff out there from the likes of $microsoft etc..
    Does this give them a legal right to pursue patents on foundation software??
    I also find that this license is popular within these technolgy areas even for commercial comapanies

    • Apache is proprietary (Score:4, Interesting)

      by AirLace ( 86148 ) on Thursday May 30, 2002 @08:36AM (#3608428)
      This is misinformation. Far from being an alternative to proprietary products, the Apache foundation is pushing proprietary solutions.

      The Apache foundation has been pushing Sun's proprietary Java technology for several years, with packages like Cocoon; indeed, most of their XML work is based on non-free Java components. Even though the code Apache produces is free, most of it (other than the Apache httpd) is based on proprietary foundations which compete directly with truly free alternatives like PHP and DotGNU/Mono's ASP.NET implementations.

      Apache has served its purpose, but I just don't see why they're now trying to base their tools on closed source platforms. History has shown again and again that, even when the upper layers of software are proprietary and commercial, the platform itself must remain relatively free and open. That's why I've come to abhor the Apache Foundation.

      I also don't agree with their willingness to give away so much code under a non-copylefted license, handing over their 'crown jewels' to companies who then proprietarise them. It sickens me to see companies package up Apache pre-releases and sell it on without source code as "Apache 2" months before the release date, damaging the reputation of the Apache httpd and Open Source in general. But that's another can of worms.

      • Re:Apache is proprietary (Score:1, Insightful)

        by Anonymous Coward
        wait- you think that PHP is an alternative to Java? have you either used either one?

        and Mono!?!? give it a couple of years and perhaps it will be an alternative to Java. should the Apache people sit on their hands until then?
      • Abhor all you want. Some of us just want to get work done, in which case Apache rocks.
      • proprietary foundations which compete directly with truly free alternatives like PHP and

        IMHO, the best way to run a small - medium - semi large site is apache/php/mysql, 3 products that go hand in hand. for truly massive sites apparently mysql breaks down - I've never had a site with more then about 500,000 hits a day though.

    • If I remember correctly, those patents (or some of them) were on technologies in the TUX webserver. Apache is competition with TUX; therefore Redhat doesn't want to give up an opportunity to fight Apache.

  • It's safer to juggle chainsaws than patent politics and the open source community.
  • Couldn't the FSF, or some other good body, just start getting patents for everything that they can think of under the sun and then allow those patents to be used by anybody? This would help keep patents from being used like a club.
    • Problem is your causing more work for an already over-taxed PTO.

      There are legitimate claims for patents [it happens!] but this "lets dillute the roads" method is just going to make it harder for the PTO to validate claims and in the end either the PTO will blow up [too much stuff inside the building it will have to give sooner or later] or the PTO will use *automated* rubber stamps!

      Then we will see patents on methods of delivering oxygen to the blood stream via a semi-permeable membrane and a network of tubules [e.g. the lungs!]

      Tom
  • Hmm ... I'd say the most interesting part of the policy [redhat.com] is this:

    At the same time, we are forced to live in the world as it is, and that world currently permits software patents. A relatively small number of very large companies have amassed large numbers of software patents. ...

    One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes. .... In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance. We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position.

    The idea is very similar to the GPL. Maybe we need a general "patent GPL" - one which is not a "policy", which can be changed later, but a stronger assignment of patent rights to a GPL'ish foundation in defense.

    Maybe it's time to revive the League for Programming Freedom [mit.edu], but along these lines.

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

    • Re:Time for a PATENTS version of the GPL? (Score:1, Insightful)

      by Anonymous Coward
      A "patent GPL" would appear to be quite possible.
      IANAL, as ever, but it would seem to have to do the following:

      1. License the patents (rather than agree to not enforce them), in perpetuity to any person for the use in GPL software, for no money (but see 3. for the consideration)

      2. Grant the licensee the right to license the patent to other people under the same terms (so that if RHAT gets bought, its patents stay free as long as there is one free software guy with a license somewhere).

      3. In exchange for the rights in 1,2, licensee agrees to license any derived patent under these same terms.

      Dress that up in lawyer-speak, and you're done.
    • A "patent GPL" is a great idea, and I think is in line with the software GPL. (Which even tho I don't entirely agree with, I see the need for and usefulness of.)

      What sort of terms might be specific to a "patent GPL" ??

  • ?'s about patent use (Score:2, Interesting)

    by sketchkid ( 555690 )
    ok, so im not sure what red hat wants to do. i mean, if they feel they are protecting these by patenting them themselves, then i think they are making a mistake. my understanding of patent law, is that if you do not aggresively defend your patents, including fighting those who use your patents, then you will lose the rights to them if challenged in court. in my marketing class we covered a case where a company went 5 years before challenging a competitor who was using a patent and then lost the right to the patent because they had not responded sooner and had waited 5 years. im curious in how red hat would plan on retaining ownership of these patents if others will be allowed to use them, presumably for free.
    • <sigh>

      No.

      Of the three main types of IP, only trademarks must be defended to remain valid. Basically:

      1. Copyright exists from the moment of creation, though it is much easier (read "possible") to defend if registered.For more information on copyright, go here [devx.com]
      2. A Patent must be registerd for. It
      3. Like a copyright, Trademark need not be registered; use of a mark is technically enough. Also like copyright, it is much safer to register. Even if registered, a trademark may be lost to the public domain if not defended.
      For a general reference to IP, try here [akermanip.com]. Warning, that site is an IP law firm ... their facts seem to be right on, but beware of bias!
  • This is actually pretty good. They will as a practical matter be bound in many cases, because there is a legal rule called "estoppel" which will prevent them from changing their mind on someone after they have acted in reliance on this policy. The permission given here should actually be pretty difficult to shake off.

    So "good guys" who operate under open source/free lienses should be reasonably well protected here, and at the same time the patents CAN be asserted against those producing proprietary software. Not bad at all, I would say.

    In fact, it could be a net plus for free software.
    • This is actually pretty good. They will as a practical matter be bound in many cases, because there is a legal rule called "estoppel" which will prevent them from changing their mind on someone after they have acted in reliance on this policy. The permission given here should actually be pretty difficult to shake off.

      I am not a lawyer, this is not legal advice.

      As far as I understand it, estoppel as it applies to patents is limited to admissions before the PTO and the courts. Essentially, if you file for patent A and tell the PTO, "this doesn't apply to B" then you can't later prosecute someone for infringement of "B" even if the "it doesn't apply to B" clause isn't written in the patent anywhere.

      It's basically to prevent you from pulling a fast one to get something by the PTO (though in this day and age it seems like you don't need a fast one, they'll grant anything).

      In other words, I think it would be difficult to argue to a court that they've created a legal estoppel here; not impossible, but it's definitely not a given.

      See e.g. the baypents glossary entry for estoppel [baypatents.com].

      Also see (but read the rest of this paragraph)
      their description of "Prosecution History Estoppel" [baypatents.com]. The latter (Prosecution History Estoppel) is a broader restriction but the linked page says "a strong appeal of that decision to the U.S. Supreme Court is currently (early 2001) under way". In fact, the Court rendered its verdict earlier this week refusing to apply the doctrine of equivalents to prosecution history estoppel, which takes a lot of the teeth out of PHE. So don't rely on that one unless you have a very good understanding of the law and the Court's decision. (also note that in this context "prosecution" doesn't relate to patent enforcement but rather to the process of applying for the patent).

      Again, I'm not a lawyer. Consult a lawyer if you need legal advice.

      Sumner
  • Sure, Red Hat's being nice to developers using certain licenses, but they're not being nice to anyone else. If Red Hat's patenting obvious or semi-obvious things, they can still use those patents against other companies-- that's what they have the patents for. Even if the patents are obvious. Or invalid.

    Patents on the obvious are bad. They reduce competition, and give the big dogs levers to hit the smaller dogs with.

    Not good enough. Patent things, or else don't. This middle of the road patent-but-not-against-friends crap just muddies the waters.

    When Red Hat feels threatened by some smaller company, you can bet that patent portfolio will come out.

  • Damned if they do, damned if they don't? (Score:5, Insightful)

    by dinotrac ( 18304 ) on Thursday May 30, 2002 @07:49AM (#3608268) Journal
    I don't know about this one.

    Patents are used as weapons these days, without any regard for their validity.

    The RedHat folks are right about one thing: the best defense against a patent suit is to hold the patent yourself.

    Software patents are particularly bad. The PTO hands them out like cents-off coupons at a supermarket. Once in hand, they are presumed valid, a presumption that is difficult and expensive to overturn.

    They could also argue that their patent collection is not conceptually different from the GPL itself. After all RMS, Bradley Kuhn and assorted other FSF luminaries are on record as saying that IP shouldn't exist at all. In a world without IP, you can't have a GPL, and, presumably, don't need one. Yet, in our world, we have a GPL that relies on current IP law.

    These things make sense to me.
    But...
    Software patents so distort the whole software sphere.
    I guess, in the end, my head understands RedHat's moves, but my heart is deeply troubled.
    • The RedHat folks are right about one thing: the best defense against a patent suit is to hold the patent yourself.

      That view is common but incorrect. A public disclosure of the invention is much cheaper and just as good for defending yourself against an infringement claim.

      If RedHat spends the money on patenting something, that means that they indent to either sue people or to keep people from practicing what they patented.

      They could also argue that their patent collection is not conceptually different from the GPL itself.

      It is conceptually quite different: GPL'ed software comes with a binding, perpetual commitment to keeping the free software free. RedHat's patents come with only a promise that can be withdrawn at any time.

      • >A public disclosure of the invention is much cheaper and just as good for defending yourself against an infringement claim.

        No. Public disclosure is cheaper only so long as you don't get dragged into court for infringing a patent.

        Public disclosure of an invention should but does not prevent the award of patents. The PTO really is doing a terrible job these days.

        The problem comes from a patent's presumption of validity. Very expensive to disprove. Very nasty affair.

  • Using software patents to impose a licence on developpers is plain wrong. It's just what we hate with MS and the likes. Plus this will divide divide the community (what about the BSD folks...). We should use patents only against patents. What about a GPL-like model, where all patents used in conjunction with RH patents in the same software suite would have to be licenced the same way ?
    • in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance [of defensive patents]

    OK, then assign the patents to the FSF.

    No? Why not?

    There's only one answer to that question. Red Hat wants to retain the ability to leverage these patents against other Open Source companies.

    I'm not saying that as though it's a great revelation: Red Hat are a commercial company, and their main competitors aren't Redmond, but other Linux distros. What I am saying is that they are being hypocritical about this, and that their actions - and the specifics of their promise - don't match their high ideals.

    Here's what they've actually promised:

    • They've promised to "refrain from enforcing the infringed patent" if it's used for open source software. Not waiving the patent. Not licensing it. Just not punishing the infringement. And not in perpetuity either. This is a significant omission, and I believe that it's a deliberate omission, not just an "oopsie". The alternative answer is that Red Hat have lazy and incompetent lawyers. Choose one.
    • They offer to license (i.e. leverage for gain) patents to non-open source developers. Rank hypocrisy!
    • They will use their patents to retaliate against anyone who brings patent claims against them (this last clause is the most justifiable).

    This is a thin promise. Open source developers are still infringing their patents, they're just not (at the moment) going to prosecute those infringements. That's a nasty sword of Damocles they're dangling over our heads.

    Again, ask yourself why if Red Hat are actually serious about their claim to loathe patents and support open source they don't assign the patents to the FSF, or at a minimum, actually waive rights or grant an implicit or explicit license to open source developers. The actions and the promise don't match the rhetoric.

    • It seems to me that Red Hat (and other OSS companies) have basically two choices-- A) Patent your technologies so that others may not or B) Don't patent them and be forced to license them from those that do.

      There is no gray area here. For better or worse, companies are obtaining software patents. In some cases, some of them are for stuff they had nothing to do with. You can say what you want, but the fact remains that anything Red Hat and company produce outside the realm of the standard Linux kernel is subject to being patented by someone else.

      Some companies have billions in the bank ready to fight off lawsuits, Red Hat isn't one of them.
      • It seems to me that Red Hat (and other OSS companies) have basically two choices-- A) Patent your technologies so that others may not or B) Don't patent them and be forced to license them from those that do.

        For the sake of argument let's say that's true (it isn't). That still doesn't answer the very valid objections in the original message. Patents are not weakened by non-enforcement. Red Hat could explicitly state that they will never, ever use their patents against any open-source developer. They have chosen not to do so. That would not in any way compromise their ability to defend themselves against other companies with bogus patents.

        The whole patent system is FUBARed and needs to be fixed. Arging that it's essential to take out bad patents to defend yourself against bad patents is wrong and stupid. It only perpetuates the problem while doing nothing to encourage a real solution.
      • If they developed the techonology first, then no one else can patent it. If they do patent it, Red Hat can ignore them and use the tech anyway. If they sue, RedHat can countersue and get triple damages.

    • Re:Put your patents where your mouth is (Score:4, Insightful)

      by rsidd ( 6328 ) on Thursday May 30, 2002 @08:39AM (#3608441)
      OK, then assign the patents to the FSF.
      No? Why not?
      There's only one answer to that question. Red Hat wants to retain the ability to leverage these patents against other Open Source companies.

      No, there's another answer. Red Hat wants to retain the ability to license these patents to closed-source companies, and make some money that way. Hey, what an idea, making money. Red Hat must be pretty evil to think of that. Maybe we should all go use Debian, and get Debian to pay the salaries of Alan Cox and others too.
        • Red Hat wants to retain the ability to license these patents to closed-source companies, and make some money that way.

        ... while at the same time claiming to detest leveraging patents (as opposed to just making good products) as a means of making money! What part of "hypocritical" are you having trouble with?

        • ... while at the same time claiming to detest leveraging patents (as opposed to just making good products) as a means of making money!

          Where did they claim that? They only say that software patents impede innovation and are inconsistent with open-source software. Not that, given that they exist, they should not be leveraged to make money.

          If Red Hat adds to its income, it can pay more developers, pay them better, and thus benefit free software better. And not just the linux kernel. The advances between gcc 2.7/2.8 and gcc 3.0 have been quite significantly driven by Red Hat, as has the initial impetus for the gnome desktop.

          What part of "hypocritical" are you having trouble with?

          The part which says it's ok to use copyright law to enforce the GPL, but not to use patent law to benefit free software. If you're such a fan of the FSF, by the way, why don't you demand that copyrights to the Linux kernel be handed over to the FSF? There are very good reasons people don't want to do that, even apart from wanting to dual-license and make money (Troll Tech can dual-license Qt, but nobody can do that with linux, too many people hold the copyrights.)

        • Your argument makes no sense. Simply make good products without any protection? Loser's game. Ok, I make a really great device that I do not patent but begin to sell, shortly thereafter, YOU steal my idea and start selling the same thing, perhaps undercutting me. You rip off my idea and I have no recourse becuase I was an idiot and didn't seek patent protection.


          Same idea here with RH, see? They should be able to 1) make money and pay their employees and not be expected to be starving hackers, and 2) they should have recourse to nail those who seek to take ideas that they are incapable of coming up with themselves and undercutting the real source of the ideas. RedHat is perfectly logical an right to seek to be able to make money off corporations and protect themselves from such corporations (Microsnot, for instance) taking one of their product/ideas/code and folding it into one of their proprietory, anticompetitive, and illegal bullcrap software. Bully for Redhat.

    • I can understand your concerns, but why is RedHat still publishing a lot, if not all, of their code GPL'ed? They could achieve the same thing (fighting against other distros) a lot easier by incorporating essential closed source software into the RH Linux package. Filing for patents is a lot more hassle then just releasing software under a proprietary license.

      They would furthermore hurt their developer base and a lot of their customers by doing this. In the long run, they would achieve the exact opposite of what you are worried about. RH users can move to any other distro any time, or build their own based on an older (pre-patented) version of RH Linux.
    • I agree with you. I work on closed-source (oh-no), but I strongly dislike software patents. I hate that fact that development is a valley full of potential land mines (patents). Competition is good, but patents do not provide that. Personally, I would prefer to see them waive their right to attack others with patents. That would truly be defensive.
      • OK, then assign the patents to the FSF.

        No? Why not?

        There's only one answer to that question. Red Hat wants to retain the ability to leverage these patents against other Open Source companies.

      No other answer comes to mind?

      If you were running a business, would you trust the FSF or ANYBODY else to use their patent portfolio to defend YOU in case of a hostile patent infringement suit?

      This would give the FSF a lot of leverage over Red Hat that they might choose to use in the future. RMS, or his successors at the helm of the FSF, might require you to do all sorts of things that are against the interests of Red Hat as a business with this leverage.

      War is nasty and requires us to have a lot of dangerous and potentially abused weapons at our disposal. Patent lawsuits are similar in this regard.

      You don't criticize a country for having dangerous weapons, only for using them immorally. Wait until Red Hat abuses their position, then criticize. Until then, I think it's best to be circumspect.

      If you don't agree, how do you propose that Red Hat protect themselves from patent lawsuits? Assign their patents to the FSF and hope that the FSF defends them and doesn't make any onerous demands in the meantime? Is that your only solution?

      • > OK, then assign the patents to the FSF.
        > No? Why not?

        This would give the FSF a lot of leverage over Red Hat that they might choose to use in the future.

        So give them a non-exclusive license, wrapped up in a contract. It is possible to give rights to the FSF whilst having an agreement that prevents them from being used against you.

        • If you were running a business, would you trust the FSF or ANYBODY else to use their patent portfolio to defend YOU in case of a hostile patent infringement suit?

        Of course not, and I'd also cynically and mendaciously claim that I was gaining patents for the benefit of the open source community, while actually retaining the option to wield them as a weapon against anybody, including my main competitors, exactly as Red Hat is doing.

        I have no problem with what Red Hat is doing, I'm just pointing out that their actions don't match their rhetoric, and that's a good sign that they're going Dark Side real soon now. Let's wait and see. One of us can say "Told you so" in about two years.

    • Give those patents to the FSF and Red Hat Linux will be bullied into calling itself Red Hat GNU/Linux.
  • What would be nice is if Red Hat, or some one else who 'can', started an Open Patent policy with terms such as:
    You can use our patents for Open Sorce development, or X patents Closed source Development so long as you make Y nagotiated patents available for Open Development.
  • orginization that has a charter designed specifically to maintain patent absudities. The charter would be such that it could only use the patents in defense of the OS community. Then, if the orginization fails the patents return to the community. If the patents need enforcing to defend the OS community they are available. Make the orginization democratically controlled by members of the OS community in good standing. Done!

    Nobody can take control of patent absurdities for short term personal profit, as large corps are known to do.
  • omg ;) for a moment there a thought RedHat had patened promises :) i mean .. someone has already patened sideways swinging so .. i'm a bit paranoid about patents these days i guess :D

  • SGI had the same policy, it made no difference. (Score:5, Insightful)

    by Performer Guy ( 69820 ) on Thursday May 30, 2002 @09:00AM (#3608528)
    SGI used to tell their employees that they filed patents purely as a defense (they had been sued).

    Then SGI sued NVIDIA because they were losing in the market.

    Then SGI sold all their graphics patents to Microsoft because they needed cash.

    Patents are an asset, once they are aquired they can be abused and sold irrespective of what the original intent was.
  • The GPL makes a guarentee that the software in question will have it's source sharable for the lifetime of the software and ensures that any investment you make in GPLed software won't be closed off and resold by someone else who don't want to share.

    Could a license be made that allows this to happen with patents. In particular:
    * This license in irrrevocable
    * This license is freely licensed for GPLed software
    * This license is freely licensed for all free software subject to the condition that:
    1. The software is not linked to non-free software
    2. If the software contains any patents, those patents must be freely licensed to any free software.

  • The problem with a binding promise not to pursue open source projects is the risk of someone using the promise to evade the patent protection.

    Suppose that Red Hat gains a patent on a new voice compression algorithm, and United Megacorp produces a voice conferencing product that uses this algorithm. UM can release its product with modular plugins for the codecs, and then just release the patented codec as OSS. Hardly a big win for the open source side.

    Having said that, not all patents could be subverted so easily. The codec patent could be evaded, but a patent on using the codec within a voice conferencing application would not. At that point (AIUI) UM would have to release the entire conferencing system as OSS in order to fit inside the RH promise conditions.

    Paul.

  • Level the playing field (Score:3, Insightful)

    by merkel ( 219826 ) on Thursday May 30, 2002 @09:38AM (#3608799)
    Like many open source advocates, I am generally opposed to the idea of software patents, particularly under the current US patent system.

    It is very hard for me to understand why anyone should be granted a 17 year monopoly on something in an industry that changes so quickly. Given the relatively low cost of developing new algorithms (compared to say drug research), the amount of simultaneous development, and the vast amount of prior work and prior art that all programming depends on, it seems a little disingenous for anyone to even apply for a software patent.

    But as is often the case reality doesn't exactly jive with our open source utopia.

    I have long thought that the FSF (as inimical or oxymoronic as that would be) or some other open source leadership group should create a foundation to manage software patents on behalf of open source developers.

    The foundation would have clearly established rules for licensing and royalties and patent grantees so inclined could assign their patents there.

    Eventually the open source community would have a portfolio of patents that they could use as a defense against software patents owned by corporations.

    At the same time, this would have the benefit of calling attention to the inanity of PTO granting software patents.

    It seems to me that this is what RedHat is doing - and I give them a lot of credit for it. The danger is that these patents become an asset of the corporation. While the current management may be completely trustworthy in this respect, there is always the danger that a change of control might put the patents at considerable risk.

    Anyway, what do people think? What is open source's best defense against a world of software patents?

  • For me, the most disturbing thing about the question of Red Hat's proprietary move is the shift in focus that it forces on me and the community, and the shift in focus that, I think, is taking place within Red Hat.

    Until now, the focus of Red Hat, at least as we, out here, perceived it, was outward, like the focus of every other Open Source developer. Lists were open, licenses were open, policies were (more or less) open and, above all, minds and attitudes were open for viewing by all of us.

    But not anymore. Red Hat now has "property" of which it can think as "mine" or "ours." Property which does not belong to all of us in the community, but belongs solely to its owner, Red Hat Software.

    For "us" and for "them," the meaning of "us" has changed.

    I realise that it's never really been true that GPLed software "belonged" to everybody, in the proprietary sense, but there has always been a sense of participation in it; a sense that, because GPL gave us all licence to use it, and because Red Hat was playing the game in the same way that the fourteen-year-old who writes a GUI for configuring something also plays it, the company was still participating in the community on the same level of innocence as the child.

    I think that's not so, anymore. Private property creates an atmosphere of secrecy -- what, exactly, are these patents, and which of the many bits of software I'm using are now subject to secret decisions at Red Hat?

    I don't know. Not because Red Hat won't tell me -- if I ask, they probably will -- but because it's in the nature of a private thing to remain private and become more so.

    Once there is proprietariness, it seems to me, it's difficult to go back. Once there is something powerful about which it is appropriate to make secret policy decisions, then secrecy in policy decisions becomes a part of policy, itself -- and secretiveness is highly addictive.

    GPL protects the public right to use. Patents protect the private right to own, and to control.

    It seems to me that that's an important difference, and a crucial one, to the OSS community. It's quite true that Joe Blow still owns, and always has owned, the copyright to the software that he wrote and that I use every day. But that was not the focus of GPL. The point of GPL was to put a limit on Joe Blow, so that he could no longer decide to hide away the source code for the software he had released. The point of patents is to put a limit on us.

    And, whether the patent is enforced or not, and whether or not its proprietor make a promise not to enforce it, the right to enforce it is implicit in its existence .

    And, suddenly, I'm having to look at Red Hat in a different way. Suddenly it's no longer a company formed to protect the rights of the many, but a company part of whose stated policy is to hold some rights to itself, and away from the community.

    No matter what it says.

    It isn't that I don't trust Red Hat -- I do. (At least as long as Alan stays there.) It's that that's a different kind of trust.

    Suddenly I'm no longer trusting a bunch of geeks who are a lot like the rest of us to hold off the Borg at the bridge. Instead, I'm trusting a corporation to keep its promise to refrain from bashing in the heads of the villagers.

    Red Hat is a different animal, today, and I'm going to have to think hard about that.

    Mac

  • My thoughts on this are simple. I trust red hat to honour their word on this. Yes, they could change their mind, but I don't think that they will.

    However, what if Red Hat go bankrupt? One of the things that will be up for sale will be the patents that Red Hat own. What happens if Unisys(for example) buys these patents, does anyone really want to see another GIF debacle?

  • One of the ideas of patents is that they are not valid if there is prior art. The open source community is all about creating art (reuse not recreate) so it is by definition prior art. Instead of just having various places like gnu, freshmeat, apache or others there needs to be a deliberate attempt to create a "prior art registry". This would be both a place the patent office can check to see that indeed the patent application is just an attempt to cash in on prior art and a place people looking for software for a specific purpose can bee found. The free software foundation and others that believe such should support this and might get funding from NGO's and the UN that need cheap software for the worlds use. Once such a corpus is created then it should be much easer to show that a patent is invalid and put the onus on the enforcer to show that it was patented before registration. There will still be cases where an algorithm was published in some journal or something but they would be less and less frequent. All releases and versions would need to be held in toto with dates and names of authors. But I'll leave it to the lawyers to come up with the details.
  • More interesting than Red Hat's patent policy is that I can't seem to find any patents owned by them. A search at uspto.gov for "red hat" (it's case insensitive) returns 20 patents, none of which are assigned to Red Hat Inc., according to the "Assigned Name" field.

    Either I'm missing some patents assigned to them, this policy is completely vacuous, or Red Hat intends to buy/patent many things starting soon.

  • The vibe here seems to be along the lines of "Red Hat needs to do this to defend themselves from other patent holders." But RH is going beyond that, with it's offering of free use only to certain types of software. If self-defense was the only reason for this, RH could easily grant free use to "anybody that agrees not to ever sue us for patent violation." They have not done this.

    Software patents are wrong for many reasons [mit.edu]. The work that Red Hat have put into what they've patented does not warrant granting them a monopoly on the technique for over a decade. Exploiting a misguided, fascist system to quash potential competitors is wrong.

    It was wrong when Amazon did it, and it's wrong now. The fact that Redhat does free software (which 'we' like) and Amazon doesn't (which 'we' don't) doesn't make this right.

  • Many companies "promise" that they file for patents for defensive purposes only. Please. Maybe Red Hat is really telling the truth, but in general one should never believe what a publicly traded company promises todo. One should assume that the publicly traded company will try to maximize profits for their shareholders.

    If a company truly is filing for a patent for only defensive purposes then they would donate it to an intellectual property conservancy [dlib.org], like The Knowledge Conservancy [knowledgeconservancy.org] run out of Yale. That way a company won't be tempted to try to cash in on their IP if they have a change of heart about their "promise" or if they get bought by someone else. Hopefully we can learn something from the CDDB debacle.

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