Red Hat Patenting Around Open Standards

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.

I'm not a prognosticator, but....

[zappepcs]

If the patent systems are to be beaten into submission, and put in their place, it will take many such protective patents. That is to say, patents which are granted but the patent holder never uses against anyone, thus over time forcing the patented issue into the public domain by virtue of failure to enforce it.

There will have to be huge portfolios of these and events such as IBM or other big portfolio holders simply refusing to litigate against anyone. It will get tricky but needs to be done. If IBM et al decided that they would only enforce those that are crucial to their own viability/survival, and not litigate against little guys, it would change how things are done. No matter, it will still be messy till the market settles on what is a 'normal' and 'don't be evil' way of doing things despite what the USPTO or any other might say is legal.

It always starts out with good intentions

[HangingChad]

These kinds of efforts always start out with the best intentions. Then the company gets sold or new management comes on board, money gets tight and it's not long before they're taking another look at monetizing their patent portfolio.

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?

Re:It always starts out with good intentions

[DustyShadow]

All Red Hat really needs to do is publish the inventions instead of patenting them. That would create prior art. That doesn't always work however because patent examiners have little time to do prior art searches and often just rely on what the inventor supplies them with. Then if they do searches, they usually only search patents and patent applications. Once a patent is granted, it is given a presumption of validity and it is very costly for a defendant to overcome that presumption even when you have prior art that is directly on point.

Re:Defensive Patents

[SatanicPuppy]

It's not about that. It's about mutually assured destruction. You can sue me, sure, but I can sue you too, so do you really want to start this dance?

If you just posted prior art, all you're doing is protecting stuff that you came up with yourself, and even then, you may still have to prove your prior art in court. It doesn't help in a situation where another company has patented some BS that they claim applies to everything you do.

Re:It always starts out with good intentions

[itsdapead]

Then the company gets sold or new management comes on board, money gets tight and it's not long before they're taking another look at monetizing their patent portfolio.

Aye, there's the rub! Particularly when the sorts of companies the patents might be used defensively against could probably afford to bankroll a hostile takeover if Red Hat got too anoying.

Obtaining patents and then releasing them under an irrevocable public license seems like the only way to avoid this - but then you'd still need a clever, bulletproof "GPL-for-patents" public license to ensure that they could still be used defensively. The first test case of such a license would be, er, fun... (Unlike GPL, it could end up being infectiously viral, because you don't have to consciously copy anything to violate a patent).

My suspicion is that the the mutually assured patent portfolio destruction concept only really works for superpowers with very deep litigation pockets. Part of the problem is, the patent system is so broken and full of invalid patents or patents on minor variations of other patents, nobody really knows whether they are holding a doomsday device or a shiny casing full of pinball machine parts...

Re:It always starts out with good intentions

[hankwang]

All Red Hat really needs to do is publish the inventions instead of patenting them. That would create prior art.

That isn't the purpose of a defensive patent. The idea is that if Company X tries to sue Red Hat for patent infringement, then Red Hat can countersue for the infringement of Company X on one of RH's defensive patents. Either that or RH and Company X simply agree on cross-licensing their respective patents to each other.

Re:Defensive Patents

[StuartHankins]

Prior art may supposedly be equal to defense, yet it's not the same for many reasons. A clueless PTO and large legal fees to fight a patent once it's granted make it relatively easy to fight off patent challenges while you rake in money in the meantime.

A "good ideas" site won't protect anything from being patented, the only thing that stops a patent from being granted is another patent, and sometimes by changing words around that isn't even enough.

Unfortunately the patent system is hopelessly broken.

Re:It always starts out with good intentions

[crush]

Red Hat's public promise [redhat.com] to never use their patents against Free or Open Source Software surely nullifies any such worry? As Red Hat are one of the main contributors to the Open Invention Network I would hope that they will add this patent to the other ones currently mutually held by OIN to defend FLOSS against patent attacks [openinventionnetwork.com]. That would make this worry completely invalid.

Re:Defensive Patents

[halivar]

Mutually-assured destruction worked exactly as intended, in preventing nuclear war for over 50 years. I see no reason why those lessons can't be exported to business... a diplomacy of a different kind.

Re:Why not simply establish a 'prior art' portfoli

[TheRaven64]

Not really. A patent portfolio doesn't help against patent trolls. A patent troll, by definition, doesn't produce anything, and therefore doesn't infringe any patents.

Patents are purely negative. All they allow you to do is prevent other people from making and distributing something. I can file a patent which requires a patent you own to work, and I can license it to other people without your permission. The people I license it to may need your patent as well, but how they get it (cross-licensing deals, buying it outright, or whatever) is not my problem.

If a patent troll sues Red Hat for infringing their patent, then a parent portfolio doesn't help. Red Hat can't say 'you can't sue us, we have loads of patents.' The other company will just say 'what do we need patents for?' and continue with the suit.

Defensive patents only work against big companies like IBM or Microsoft who are almost certainly infringing your patents for something.

Re:Defensive Patents

[WaywardGeek]

Has Red Hat committed not to sue open-source projects? That would be the logical step, if their patents are truly defensive. I'll step in for Red Hat's defense. I personally resisted software patents, which I firmly believe should not be allowed, until a competitor patented work which I had invented first, yet refused to patent. Given the system, we have no choice but to play the game.

Re:Defensive Patents

[evilviper]

Mutually-assured destruction worked exactly as intended, in preventing nuclear war for over 50 years.

Not really.

After WWII, the US had several years as the only nuclear-armed nation, and yet didn't attack the Soviet Union.

The US developed the fusion bomb before the USSR, making it the first with the "assured-destruction" scale weapons, where little if any retaliation would have been possible, and yet didn't use that opportunity.

From the 50s through the 60s, the US was pretty well assured that, with a full nuclear first strike, it could almost entirely eliminate the retaliatory threat from the USSR. Again, it didn't happen.

The USSR had to adapt it's nuclear submarine fleet for extended operation under the Arctic polar ice cap just to establish a guaranteed retaliatory capability.

At best, there was about 20 years of MAD.

Re:Defensive Patents

[Runaway1956]

One glaring reason. It stifles innovation. Obvious uses of existing tech is exactly that - obvious. If some rich sumbitch patents the obvious, that means no one can use it. Talk about the dumbing down of America... let us suppose that the internal combustion engine (obligatory car post out of the way now) had been patented, then every obvious use were patented as well. We would STILL be putting around with the first two and four cylinder noisy, smoke belching, hand cranked engines. Good grief.

Re:Defensive Patents

[MichaelSmith]

If the US took out the USSR they would have been attacked by pretty much every other country in the world with the capability to do so. Once you establish a track record like that nobody will trust you.

Re:Defensive Patents

[turbidostato]

"Has Red Hat committed not to sue open-source projects? That would be the logical step, if their patents are truly defensive. I'll step in for Red Hat's defense."

You don't see the point then. Red Hat has commited not to sue. So what? Does that mean that they'll remain true to whatever they said? Are you really betting for some kind of "honor" on a corporation? And even if current directors board remain that way, do you think next CEO will find reasonable to support past CEO's promises if she finds better bussiness opportunities on not doing so? Even more: for a publicly traded company wouldn't she be legally bound to try to get the most out of the company's patent porfolio given the chance?

Re:Defensive Patents

[Joe U]

Comparing economics and politics to massive explosions and firestorms that kill millions of people instantly, yup, they're exactly the same. I can't see how I missed that.