Red Hat Patenting Around Open Standards 147
I Believe in Unicorns writes "Red Hat's patent policy says 'In an attempt to protect and promote the open source community, Red Hat has elected to... develop a corresponding portfolio of software patents for defensive purposes. We do so reluctantly...' Meanwhile, USPTO Application #: 20090063418, 'Method and an apparatus to deliver messages between applications,' claims a patent on routing messages using an XQuery match, which is an extension of the 'unencumbered' AMQP protocol that Red Hat is helping to make. Is this a defensive patent, or is Red Hat cynically staking out a software patent claim to an obvious extension of AMQP? Is Red Hat's promise to 'refrain from enforcing the infringed patent' against open source a reliable contract, or a trap for the unwary? Given the Microsoft-Red Hat deal in February, are we seeing Red Hat's 'Novell Moment?'"
Reader Defeat_Globalism contributes a related story about an international research team who conducted experiments to "quantify the ways patent systems and market forces might influence someone to invent and solve intellectual problems." Their conclusion was that a system which doesn't restrict prizes to the winner provides more motivation for innovation.
Re:Defensive Patents (Score:4, Informative)
Why not simply publish the spec in wikipedia and as many lists as possible (including your own web site).
That's probably the cheapest route, but the safest route (if all you want in terms of defense is publication rather than a war chest of patents for warding off lawsuits) is called a Statutory Invention Registration. It's cheaper than filing a patent, and it doesn't stake out any invention territory (meaning that if someone duplicates the invention laid out in the SIR, you can't sue them for infringement based on the SIR). But it will show up in the search tools used by US patent examiners, and it establishes a prior art date, so that it can easily be found by examiners for the purpose of rejecting future applications.
Actually, IBM did something similar back in the 70s - they published a series of Technical Disclosure Bulletins, where they disclosed a bunch of things they had come up with but that they weren't interested in patenting. They just didn't want anybody else patenting it and then suing them over it. The USPTO has all of that IBM stuff in its search databases as well.
Re:Why not simply establish a 'prior art' portfoli (Score:2, Informative)
You can't use a 'prior art portfolio' to countersue someone who is pursuing a patent infringement case against you.
However, if they infringe as many of your patents (as you infringe of theirs), it will be in your adversary's best interests to reach a settlement that doesn't hurt you, rather than trying to drag your case through the courts, at great cost no matter the outcome, and potential loss of the case (resulting in serious problems for your business).
Re:It always starts out with good intentions (Score:5, Informative)
If RedHat was really serious about the patents being defensive, wouldn't it make sense for them to donate them to an open source patent pool?
As Red Hat is a member of the Open Invention Network [openinventionnetwork.com], a group dedicated to creating a pool of defensive patents, that is likely to happen.
Red Hat's deal is nearly the complete opposite (Score:5, Informative)
Novell agreed that Microsoft had a valid claim that Linux infringed Microsoft patents and paid Microsoft for the use of said (unspecified, undisclosed, vaporware) patents.
Red Hat by contrast did not sign a joint agreement with microsoft [redhat.com] but set up co-ordinated support for customers who use either Red Hat guest instances on Microsoft servers or Microsoft guests on Red Hat servers. They explicitly " ... have nothing to do with patents, and there are no patent rights or other open source licensing rights implications provided under these agreements. The agreements contain no financial clauses other than test fees for industry-standard certification and validation."
Microsoft realized that they would be frustrating customers if they did not do this. Red Hat realizes the same thing. Neither Microsoft nor Red Hat conceded anything about patents in this relationship.
The difference between the Novell-Microsoft pact and the current story is so vast that the original post is either a troll or a very confused person.
Nothing to see here, move on. (Score:3, Informative)
Given the Microsoft-Red Hat deal in February, are we seeing Red Hat's 'Novell Moment?'"
Oh, you mean the one where Red Hat got exactly what they wanted: A no-patent deal with Microsoft.
It's good that people are watchful of Red Hat, but this article is just an implicit accusation taken out of thin air.
Re:Nothing to see here, move on. (Score:3, Informative)
Yeah, the way I saw that deal was both companies agreeing to not step on each others toes in terms of their own Virtualization platforms. Neither Red Hat or Microsoft want to give EMC/VMWare any more of a competitive edge. It would be platform suicide for either company to explicitly not support the other company's operating system on their Virtual platform.
Re:It always starts out with good intentions (Score:3, Informative)
They might, but to be consistent with what they've done before and with their stated intentions they would have to licence the other party's patents for all open source software (or perhaps all GPL:d software). I think they'd do that, even if they have to throw some cash into the deal as well.
News Flash Red Hat ALREADY did that:
http://www.redhat.com/about/news/prarchive/2008/patent.html
Red Hat was the first company ever to protect Open Source downstream as well as itself in a patent settlement.
I think this says a lot about the genuine stance about patents from Red Hat.
They are needed to be able to reach deals like the one above.
Re:Defensive Patents (Score:4, Informative)
Exactly. It does not work because it does not protect against patent trolls and normal business players won't sue you as they patent for defensive purposes and maybe just want licensing fees.
With your portfolio you could countersue IBM but what to do against Eolas and Sisvel? Oh, and a patent lawsuit costs 500k.
Re:Defensive Patents (Score:3, Informative)
The Red Hat Patent Promise and Estoppel (Score:4, Informative)
"Red Hat has commited not to sue. So what? Does that mean that they'll remain true to whatever they said?"
Yes, actually, because of the legal principle of estoppel by representation of fact [wikipedia.org], also known in American law as "equitable estoppel". To wit:
"In general, estoppel protects an aggrieved party, if the counter-party induced an expectation from the aggrieved party, and the aggrieved party reasonably relied on the expectation and would suffer detriment if the expectation is not met."
Red Hat, with its patent promise, induces an expectation: that Red Hat will not sue an open source developer for patent violations. If Red Hat then violates that expectation, a judge would basically throw out any such lawsuit immediately on grounds of estoppel.