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Red Hat Patenting Around Open Standards 147

Posted by Soulskill
from the tread-lightly dept.
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.
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Red Hat Patenting Around Open Standards

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  • Defensive Patents (Score:4, Interesting)

    by nurb432 (527695) on Sunday March 15, 2009 @11:02AM (#27200299) Homepage Journal

    Haven't we heard this before? That has worked out for us rather well hasn't it.

    What company would not turn to offensive attacks if threatened?

    • Re:Defensive Patents (Score:5, Interesting)

      by dirvine (1008915) <david.irvineNO@SPAMmaidsafe.net> on Sunday March 15, 2009 @11:27AM (#27200447) Homepage
      Why not simply publish the spec in wikipedia and as many lists as possible (including your own web site). Prior art == defense in patent land, or at least it is supposed to.

      This would appear to be a 'wolf in sheeps clothing' situation and a very dangerous one. A good idea for anti-patent people (and I have a few of these things and don't like them) is for the eff or somebody to create a easily search-able list of 'good ideas' top protect the ideas from being patented.

      To stop commercial exploitation of an idea (like sticking the idea into an operating system thats very popular) thereby effectively banning all other operating systems or companies competing, is a completely different matter, and this is where defensive patents would help, but then you have to decide who can use the tech - and were back at square 1 again - very few people have the mental capacity to decide on this point.

      • by SatanicPuppy (611928) * <Satanicpuppy@MOSCOWgmail.com minus city> on Sunday March 15, 2009 @11:42AM (#27200595) Journal

        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.

        • MAD assumes that both parties have something to lose, which prevents them from playing. The biggest patent threat now is patent trolls. Because these are shell companies with nothing but IP that they can litigate over MAD is not a good deterrent against them.

          Red Hat are clearly talking bollocks about a defensive position though. That is exactly the position that Microsoft and IBM started with, and it slowly evolved into their current patent arsenals. If Red Hat really want a defensive portfolio then they sh

      • Prior art is a nice idea, but the best way to protect yourself is to get a patent on the idea first. Instead of everyone freaking out about Red Hat getting patents, why not make them license the patents to the community, or at least to the FSF on behalf of the community? If they willingly put themselves under contract not to sue, then that'll solve the problem. Intentions and kind words are all well and good, and I personally believe that Red Hat deserves the benefit of the doubt, but they should make sure
        • Re: (Score:2, Interesting)

          I agree.

          Look at it this way: If Red Hat doesn't patent the idea, then Microsoft or Apple or Google will patent the idea later on, and suddenly the open-source idea is now closed-source.

          • "If Red Hat doesn't patent the idea, then Microsoft or Apple or Google will patent the idea later on, and suddenly the open-source idea is now closed-source."

            Red Hat (nor any other company) has no means to avoid being sued (look at the SCO case for ludicrous sueing). But for the "if I don't patent it others will" argument prior art is enough. That won't prevent the other side to sue (nothing will) but it will make its attack moot.

        • Re: (Score:2, Insightful)

          by WaywardGeek (1480513)

          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: (Score:3, Informative)

            by Darkness404 (1287218)
            The nice thing about Red Hat is they seem to walk the walk. Even now just about all Red Hat's code is pure OSS, (even if they are overly-picky about trademarks), Google, Sun, Apple, and even Novell are still partially proprietary software vendors even though all of them have made great claims to how they wish to support OSS all the time.
          • Re: (Score:3, Insightful)

            by turbidostato (878842)

            "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 bett

            • by gdek (202709) on Monday March 16, 2009 @01:11AM (#27207123)

              "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.

      • Re:Defensive Patents (Score:4, Informative)

        by Dachannien (617929) on Sunday March 15, 2009 @12:03PM (#27200763)

        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: (Score:2, Insightful)

        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.
        • by shentino (1139071)

          I think that patents have gotten so bad we need to look at the possible criminal consequences of bullshitting the PTO?

          Since the USPTO is a *federal agency*, wouldn't that make it, like, a federal offense to knowingly submit a patent application that you KNOW is invalid because of prior art?

          I wonder if those patent applications have the familiar "I declare under *penalty of perjury* that the above information is true and correct to the best of my knowledge* clause you often find on federal paperwork.

          I think

          • Since the USPTO is a *federal agency*, wouldn't that make it, like, a federal offense to knowingly submit a patent application that you KNOW is invalid because of prior art?

            That would depend on legislation.
            And it could be difficult to prove intent, in any case.

      • The reason for a big patent portfolio is to defend against someone else's big patent portfolio.

      • by Jurily (900488)

        A good idea for anti-patent people (and I have a few of these things and don't like them) is for the eff or somebody to create a easily search-able list of 'good ideas' top protect the ideas from being patented.

        Done. [sourceforge.net]

    • by HiThere (15173)

      Is the code released under GPL v3? Then it's definitely defensive.

      Is the code released under GPL v2? Then it's almost certainly defensive.

      If the patent holder releases the code under either of the above GPL licenses, then it is either explicitly or implicitly giving permission to all who receive it to use and redistribute for use. And even the implicit is on the edge of explicit.

      The main difference with the GPL v3 is that anyone who distributes or contributes to the distribution of the code is also waivi

    • by lpq (583377)

      Defined 'threatened'... cause I thought this was in offensive/defensive definition
      guide somewhere in this situation:

      If ( threat.type == 'lawsuit' ) then begin
      ; ...(decide to countersue or not...)

      if ( threat.response.type == 'lawsuit' ) then
      thread.response.qualifier = 'Defensive'; -- ;endif
      end.

      ---
      Where have we heard this be

  • by zappepcs (820751) on Sunday March 15, 2009 @11:06AM (#27200321) Journal

    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.

    • by radtea (464814)

      it will take many such protective patents.

      There is no such thing as a "protective patent", anymore than there is a "non-explosive nuclear weapon."

      The key is not in the patent, but in the patent-holder, and we should keep that very much in mind because patent holders can change their minds, and patents can change hands.

      In the case of Red Hat, sure they may be building up a defensive portfolio today, but tomorrow they might get bought by XYZ Corp whose sole purpose is to exploit that portfolio for gain. No m

  • by HangingChad (677530) on Sunday March 15, 2009 @11:16AM (#27200379) Homepage

    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?

    • by DustyShadow (691635) on Sunday March 15, 2009 @11:21AM (#27200409) Homepage
      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.
      • by hankwang (413283) * on Sunday March 15, 2009 @12:01PM (#27200751) Homepage

        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.

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

        You have the wrong end of the stick. Publishing inventions provides a way of proving prior art and thus escaping the effect of a patent. However: there will always be things that were not published before they were patented, patent holders can use these to come against you. I suspect that RH is particularly worried about the recent rise in M$ patent activity (think: Tom Tom).

        If RH has some patents of its own, then when <evil company> comes demanding monies, RH can fire back by pointing out that <e

        • by oddityfds (138457)

          Normally: at this point RH & <evil company> would enter a cross licensing agreement, but I doubt that RH will do that, it will be interesting to see what they do do.

          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.

          • Re: (Score:3, Informative)

            by Anonymous Coward

            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.

        • I suspect that RH is particularly worried about the recent rise in M$ patent activity (think: Tom Tom).

          Maybe we'll finally have the complete list of 235 patents MS says open source infringes on.

      • The reason Red Hat files patents is to stockpile it's ammunition in case someone sues them for patent infringement [groklaw.net]. It's very hard to sue a patent trool like IP innovations, since they don't have a product which can violate another patent. But a company like Microsoft [slashdot.org] has a large product portfolio which might contain a product for which Red Hat can sue.

        It's kind of like the nuclear arms race, and yet this is the state of the US Patent system today.
      • The patent office does not have a history of checking prior art. They seem to just rubber stamp anything if worded in a confusing enough manner. The legal system has a habit of assuming that an issued patent is valid by default and will give an injunction till its run its way through the courts. So even if the prior art turns out to be valid prior art, you have been shutdown and in litigation for years, assuming your not already bankrupted.

        But here is the real rub. If its obvious, why would it be publis
        • Re: (Score:3, Interesting)

          by DustyShadow (691635)

          The legal system has a habit of assuming that an issued patent is valid by default

          It's not just a habit, it's law:

          http://www.bitlaw.com/source/35usc/282.html [bitlaw.com]

          Section 282. Presumption of validity; defenses
          A patent shall be presumed valid...

        • by HiThere (15173)

          Do you have any IDEA as to just how many totally obvious things have been published on SourceForge?

          The problem is finding them. There's no obvious way to index for a description of something that someone hasn't written yet.

      • All Red Hat really needs to do is publish the inventions instead of patenting them.

        Ah, but that would hardly help them recover their position as Linux market leader, from Ubuntu.

        • by walshy007 (906710)
          ubuntu is still barely breaking even, redhat has a market cap of 2.9billion, and don't even care about desktop users, they're all for the servers. different horses for different courses.
      • by pembo13 (770295)

        You do not understand what they are attempting to do. This is defense against other patents.

    • by devman (1163205)
      They do in a sense because they use these patents in GPL software which they publish.
    • by itsdapead (734413) on Sunday March 15, 2009 @11:54AM (#27200703)

      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...

      • by crush (19364) on Sunday March 15, 2009 @12:10PM (#27200843)
        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.
        • One would wonder if the promise is transferable to the new owners if Red Hat were to be bought up in the far future.

          • by crush (19364) on Sunday March 15, 2009 @12:38PM (#27201069)

            It's a good question and is answered in the license:

            2.3 If through a change of control or otherwise, on a given date, You become unable to grant all the rights granted in Section 1.2, then: (a) the license granted in Section 1.1 shall terminate on such date; (b) the license granted in Section 1.2 and vesting prior to such date shall continue; and (c) for the purpose of this Section 2.3 only, the Capture Period as to OIN Patents, Licensee Patents, and Your Patents shall end on said date. --- License Agreement [openinventionnetwork.com]

            However the companies involved in the OIN would have to ensure that they disentangle all their technology assets from the patents held by other members if they did not want to be sued. Rather a large undertaking and one that would disrupt most of the profitable enterprise revenue. So it's kind of a flypaper that gets more effective the longer its around and the more that its used.

        • But as the grandparent said, that's the current management. In five or ten years when this management team retires or are replaced with a new crop of MBA's that play from the Havard MBA playbook, i.e. how can I make the most money in the next x number of quarters so I get my bonuses no matter what it does to the long term health of the company, it may be a different story.

          Red Hat is a public traded company. Eventually it will surcome to the will of the investors who have a stake in the company. And many

      • It's a bit late here and I am sleepy, but parent's post just gave me an idea. Would it be possible to patent something not to a particular person or company but to 'the public'? That would make the patented stuff available for everyone to use but prevents companies/people to claim it as their property.

        Just my â0.02....

        • by HiThere (15173)

          No. But what one could do is to get a patent issued and then "Dedicate it to the public". This would have the effect you are after. That they didn't do this indicates that it wouldn't have the effect they were after.

          To be a defensive patent requires the capability to use it offensively when attacked. One can't do that with a patent that's been dedicated to the public.

          (Caution: IANAL. Therefore my opinions on legal matters are NOT to be relied upon.)

        • by itsdapead (734413)

          It's a bit late here and I am sleepy, but parent's post just gave me an idea. Would it be possible to patent something not to a particular person or company but to 'the public'?

          My suspicion is that that would work... if the patent system wasn't broken and the mere existence of the first patent was a cast-iron guarantee against someone else patenting the same thing.

          However, couldn't someone "embrace and extend" that by getting a new patent on some trivial but non-obvious (to plankton and software patent examiners) refinement? To prevent that, the license would need some GPL-esque viral clause.

          That gets interesting, because whereas the legal basis of the GPL is "don't agree with G

    • by MSG (12810) on Sunday March 15, 2009 @12:22PM (#27200937)

      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 reasoning is suspect, as is there motivation.

    • by Assmasher (456699)

      Ugh... My grammar is suspect as well 'their' (apologies.)

    • Re: (Score:2, Informative)

      by mysidia (191772)

      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).

    • by argiedot (1035754)
      RedHat is a member of the Open Invention Network [openinventionnetwork.com]. This means that they will not sue you if you do not attempt to use your patents against Linux. There is a License Agreement, so it is best to read that instead of simply suspecting.
  • 'Method and an apparatus to deliver messages between applications,' claims a patent on routing messages using an XQuery match

    Biztalk has routed messages using XQuery matching now for at least 5 years. The irony is, that, it seems like such a good idea to build a messaging system around XML, which Biztalk does, but in practice, it actually totally sucks.

  • by Easy2RememberNick (179395) on Sunday March 15, 2009 @11:55AM (#27200711)

    Offtopic but, am I the only one who finds it ironic, and funny, that a person with the username "Defeat_Globalism" is using the World Wide Web?

    • by npsimons (32752) *

      Offtopic but, am I the only one who finds it ironic, and funny, that a person with the username "Defeat_Globalism" is using the World Wide Web?

      Yes. Yes you are the only one :)

      Being serious, though, the anti-globalism people suffer from a framing problem. Much as I hate the goals of the ID crowd, I have to admire their tactics. "Framing [wikipedia.org]" a situation properly can give you significant advantages, whether you're right or wrong. For instance, "anti-globalism" isn't really against "globalizing" things; what t

  • "Is Red Hat's promise to 'refrain from enforcing the infringed patent' against open source a reliable contract, or a trap for the unwary?"

    I don't have a clue about Red Hat's intentions, but I do know that they can't not protect its intellectual property without risk of losing rights to it. That is, they have to act to protect it in every case of infringement. They can't pick and choose who to file against. An interesting point might occur here if they attempt to act to protect by first simply requiring ackn

    • by oddityfds (138457)

      I don't have a clue about Red Hat's intentions, but I do know that they can't not protect its intellectual property without risk of losing rights to it.

      NOOOO! That's about _trademarks_. Patents do NOT work that way.

      • I don't have a clue about Red Hat's intentions, but I do know that they can't not protect its intellectual property without risk of losing rights to it.

        NOOOO! That's about _trademarks_. Patents do NOT work that way.

        You are correct that laches applies much more strongly to trademarks than to copyrights and patents. But you appear to have fallen into the opposite misconception that laches does not apply to copyrights and patents at all. See Troxler v. Pine [patentlyo.com].

    • For patents, no, I believe a patent holder is free to ignore 'infringement' at their option.

    • I don't have a clue about Red Hat's intentions, but I do know that they can't not protect its intellectual property without risk of losing rights to it. That is, they have to act to protect it in every case of infringement. They can't pick and choose who to file against.

      This is certainly true of trademarks. If the owner of a trademark does not act on infringement, they may not be able to defend their rights to this trademark in court. But owners of patents can selectively choose who has to pay, and who do

  • by crush (19364) on Sunday March 15, 2009 @12:27PM (#27200975)

    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.

    • Microsoft apparently saw this as a way to patent manage increasing Linux compatibility, especially that core Samba developer, Jeremy Allison. And you know what? Even though the deal has failed, it worked to slow down Jeremy Allison and his work by driving him away from Novell. So to Microsoft, it was probably worth the money they've wasted.
  • It's pretty difficult to see this story as representative of a legitimate concern, at least of any informed person. Among all of the major distributions of Linux, Red Hat is probably the most Free Software oriented (except perhaps for Debian). As a member of OIN, they contribute patents licensed to other members in order to create a defence against patent lawsuits. They've repeatedly and consistently put their money into Free Software by purchasing desirable products and re-licensing them under the GPL.

    • by ites (600337)

      It's pretty difficult to see this story as representative of a legitimate concern, at least of any informed person. Among all of the major distributions of Linux, Red Hat is probably the most Free Software oriented (except perhaps for Debian). As a member of OIN, they contribute patents licensed to other members in order to create a defence against patent lawsuits. They've repeatedly and consistently put their money into Free Software by purchasing desirable products and re-licensing them under the GPL. They're one of the largest contributors of code to the Linux kernel, GNU libc, gcc, GNOME, and other core components of GNU/Linux distributions.

      And after all of that, the very notion of Red Hat suiting up to sue Free Software developers is completely ridiculous, because doing so would void their license to distribute the software.

      This article is just another troll painting one of the Free Software community's leaders in an undeserved poor light. Whether the author is completely ignorant of the subject matter, or is intentionally trolling, this story deserves a place in the dust bin.

      All patenting around open standards is a concern, both to developers of the standards, and users. A patent holder's intentions may, and often do, change over the course of the 20 years the patent may exist.

      In this case, Red Hat seem to be seeking "ownership" of areas around the standard. They don't need to sue anyone to establish this, that is a straw man. The simple fact of owning patents is enough to scare potential customers away from competitors.

      I've personally worked with Red Hat in fighting software

  • by oddityfds (138457) on Sunday March 15, 2009 @12:46PM (#27201145)

    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: (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.

  • If you have been paying attention to the way lawsuits work these days, company A sues company B for patent infringement and then company B counter sues company A for patent infringement. My guess is RedHat is covering their butt in the event someone sues them they can counter sue.

    RedHat has been pretty good to the open source community in the past.

    • by HiThere (15173)

      It's very sensible to not trust a company. Management changes over time, and with new management can come a drastically different set of policies. But the GPL makes the threat of Red Hat patents in code that they release under the GPL pretty minimal.

      Now if you use that patent in code that isn't derived from their released code, then you are vulnerable. And if your code is derived from their code, then it must be under the GPL. This makes it fairly safe for FOSS use, and dangerous to others. (Except for

  • by FlyingBishop (1293238) on Sunday March 15, 2009 @01:06PM (#27201273)

    If Red Hat should ever go after FOSS, their extensive contributions to GPL projects should prevent them from doing anything malicious with these patents.

    Though I would worry for those with more permissive licenses, the second that Red Hat contributes a line of code related to this patent to a FOSS project, that should be sufficient to argue that Red Hat placed the patent out for similar free use. I'd say this is more a question of preventing patent trolls from patenting something mind-numbingly obvious.

    Of course, placing the patents under a GPL restriction would allow them to enforce the patents against proprietary use. That would be quite a turn.

    • by ites (600337) on Sunday March 15, 2009 @01:27PM (#27201383) Journal

      This is not a question of preventing patent trolls from patenting the same thing.

      Firstly, because AMQP has hundreds or thousands of areas that could be similarly patented: failover, federation, many types of exchange, remote administration, etc. It only takes one patent to hold the whole standard to ransom. Red Hat would have to patent every single technical aspect of the standard, which would be impossible in practical terms.

      Secondly, because there are much cheaper ways of stopping patent trolls from patenting obvious things: publish them, register them as prior art at the USPTO.

      It's naive to think that the only way patents are used is to 'go after' projects. 99% of the time, patents of this sort are used in discrete discussions with potential clients. "You know, we hold a patent on that... (hint hint)". This is enough to scare the customer into at least not using a rival product, open source or not. Indeed, patents that make it to court tend to die rather faster than patents used under the table.

      The irony of this patent is that technically, it's not that interesting. Dynamic message routing on XML is not difficult, but not efficient. It's much faster to pre-calculate routing keys and indices, as the existing AMQP exchanges do.

      So I think Red Hat are simply playing the game of collecting software patents like points.

      However, I really expected better from Red Hat.

      • by HiThere (15173)

        Patent Trolls generally prefer to attack those with more money. If Red Hat becomes wealthier, then they will be a more likely target. I see this as primarily aimed at MS.

        Realistically, their's no way to armor yourself against patent trolls except to have a history of proving patents invalid. Or to get the patent laws reformed into something more nearly approaching sane or decent.

  • Is Red Hat's promise to 'refrain from enforcing the infringed patent' against open source a reliable contract

    It isn't "open source". It's just a few select licenses, and popular licenses such as MIT, BSD and Apache are NOT on the list. Would Red Hat go after software licensed under one of these licenses? Who knows?

  • I used to work for Red Hat in a group that was working heavily with AMQP, and also with customer workloads on competing messaging products. There's a *lot* of money in that market, and a lot of entrenched interests with large patent portfolios that aren't competing in other areas where Red Hat has defensive patents, so the same patents that have kept other Red Hat competitors at bay may not be effective in the realtime messaging realm. As Red Hat expands into new market niches, their patent portfolio will

  • See claim 14 of this patent [google.com], which seems to have been revoked (it was issued as US Pat. 10497125, but that patent number no longer seems to exist and Google lists it as an application - I don't know whether this is because of other prior art or re-examination as a result of Bilski). Disclaimer: I worked for the company involved from 2001 to 2007, and their actual implementation used XPath rather than XQuery, but it was it was an obvious enough variation that they seem to have it covered already.

    But answeri

  • Self defense? Security? What if they get acquired? What if they need to milk their patents to survive?

    Patents don't kill. People do.

    But knowing that, why give people patents?

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