Red Hat Seeks Limits on Software Patents

eldavojohn writes "RedHat went to the Federal Circuit Court of Appeals asking for limits on software patents yesterday. They have not uploaded their full brief yet online, but promise to post it soon. Here's a tidbit: 'Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.'"

Patents

I remember hearing once that companies like IBM often build a stockpile of patents, not so much to litigate, but so nobody else can tell them what to do with patents they don't have. Even if you're infringing on somebody else's patents, if you have enough patents of your own, you can probably find one that they're infringing on, and you've essentially come to a stalemate, so everybody's happy. Only works for the big players, though. The little guys get screwed.

Re:Patents

Nope, IBM is guilty of abusing their patents, they aren't purely defensive. See this story [forbes.com] from the 1980s.

Re:Patents

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies? I'm not saying that IBM doesn't still do that, but at least find something recent. For example, without actually looking it up to find a reference, I'm sure I've heard within the last 5 years that IBM makes somewhere around $1B per year on licensing their patents. I'm not sure how the shakedown goes, but I can't imagine it being a pleasant experience for most licensees.

Even then, that doesn't take away from the GP's point: if IBM didn't have the patents, it would likely cost IBM far, far more in license costs than $1B/year (just using the deep-pockets theory of lawsuits, and IBM has DEEEEEP pockets). So it's entirely conceivable that the patent royalties IBM gets are merely a secondary concern to IBM. I'm not saying that this is the real reason, but merely that it's plausible. Nor does it justify that Forbes account of a shakedown attempt, if still used today (in all likelihood, it is, but let's using some more recent evidence, please - statute of limitations likely has run out on charges of Being An Asshole).

Re:Patents

Dave, the CEO of NetApp had a very interesting blog posting about patents last summer [netapp.com]. Especially interesting since NetApp and Sun are now in a Patent lawsuit battle royale.

Re:Patents

Only works for the big players, though. The little guys get screwed.

Patent Trolls are usually quite small and hire contingency fee law firms to litigate the case(s) on their behalf. This has a number of advantages as well as a few (relatively minor) disadvantages...(from TFA):

Advantage:

"Some believe patent trolls have an unfair advantage over manufacturers since they are relatively immune to the typical defensive tactic large entities use against small patent plaintiffs, because the cost of litigation tends to fall more heavily on an accused infringer than on a plaintiff with a contingency-fee lawyer, and because trolls have an almost-unrestricted ability to choose their preferred plaintiff-friendly forums, most prominently the Eastern District of Texas."

IANAL, but it seems to me that it should NOT be too difficult to structure the corporate ownership in such a way that any profits from successful litigation can be extracted as legal fees from the patent trolling shell company by the law firm(s) which service it (and probably own it indirectly as well) as a vehicle to pursue their litigation while shielding the parent law firm from more direct retaliation. In any case, you would be going after the patent troll and its lawyers on their home field (i.e. the legal system) where, unless you hired equally good attorneys, they would probably be at a very definite advantage.

Disadvantage(s):

"Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, patent owners' rights to bar infringers from manufacture, use, or sale of technologies that infringe their patents has recently been curtailed in the court decision eBay Inc. v. MercExchange, L.L.C.. Rather than automatically granting an injunction, the US Supreme Court stated that Courts must apply a standard reasonableness test to determine if an injunction is warranted. Writing in Forbes magazine about the impact of this case on patent trolls, writer Jessica Holzer concludes: "The high court's decision deals a blow to patent trolls, which are notorious for using the threat of permanent injunction to extort hefty fees in licensing negotiations as well as huge settlements from companies they have accused of infringing. Often, those settlements can be far greater than the value of the infringing technology: Recall the $612.5 million that Canada's Research in Motion forked over to patent-holding company NTP to avoid the shutting down of its popular BlackBerry service."

So, small players would be at a larger disadvantage if they actually produced something other than litigation, but as you can see the system strongly favors the patent trolls with very dubious if any benefits accruing to society from the whole affair. Even with the disadvantages, it pays to be a patent troll.

Re:Patents

We have the situation today where it's pretty much impossible to write a program without hitting loads of patents. If I was given the brief of writing a video player and I just did it in a way that seemed sensible, you can virtually guarantee that I would have infringed on dozens of patents. The only hope I would have of not getting sued is if the player was not at all popular or if patent holders felt it would generate bad publicity.

The word "VLC player" just popped into my head while I was writing this, and I did a search. As I predicted there are lots of patent threats against the player.

Re:Patents

You will not infringe on dozens, you will infringe on *thousands*. I am doing just what you said, more or less. There are many many patents that are mathematically *identical*. Some even "patent" the mathematical process (lifting in this case) to derive *any* efficient implementation of DCT or similar.

Of course there are patents on sticks for dogs to fetch, how to swing in a swing and the use of a laser pointer to entertain cats (I think there a dozen of so of that one). Its quite clear that these patents won't stand up to a proper challenge and some of the video based patents have been ruled invalid when its gone to court.

But even if you win. Really the only winners are the lawyers....

Re:Patents

IBM is the main reason why Microsoft started filing software patents. The story goes like this. Microsoft was blissfully unaware of the importance of software patents until one day Bill received a piece of mail from IBM lawyers telling him that Microsoft owes a rather large amount of money to IBM and there'd be consequences if they didn't pay up. They did pay that year, but they also mandated that each group files patents on anything significant they do. If they don't do anything significant, they file bullshit patents anyway, because there's a requirement to file and if they don't file enough their VP would be fucked. And VPs usually don't take buttsecks from the superiors lightly.

These days, by sheer numbers Microsoft is one of the biggest patent producing machines, able to go medieval on anyone who tries to enforce patents against it.

There's just one kink to this, as Eolas story amply demonstrated - if the plaintiff is just a hollow patent troll that does NOT infringe on anything Microsoft does and simply holds a patent to a core technology, he can get mega-millions by suing their ass.

I sometimes feel sorry for the RedHat brand

RedHat is essentially that son who does everything the family needs, but is rarely acknowledged because he isn't 'cool'.

More on topic, I hope this works out, if only so it would reduce their costs as I like their services.

Re:

And isnt that funny....the one true commercial success story for Linux...is shunned by it's own community.

Re:I sometimes feel sorry for the RedHat brand

By the "vocal" community perhaps. Industry tends to use it pretty hardcore. I've been through three engineering (mechanical/aerospace) jobs in the last three years, and all three, when using Linux, used Red Hat.

So while people piss and moan on /. and other forums, and praise Ubuntu or whatever flavor of the month, real work does get done on Red Hat and similar distros. It's just that you wouldn't hear about it, unless you were really **doing** it.

Re:I sometimes feel sorry for the RedHat brand

is shunned by it's own community.

What part of which community?

As far as I can tell, Red Hat has a very good reputation and is widely appreciated. They hire a lot of important coders, they contribute much and they release most of their software under GPL. Sure you have the distro of the day crowd, but they'll always be installing new distributions.

Infinite goods.

It seems to me that the US in particular sees it's future income not to be based on selling physical goods but rather to be based on the sale of abstract knowledge. With that in mind the whole area of "intellectual property" and the motivations to protect it become in my own mind at least clearer. Information suffers from the attribute of infinite goods. I give it to you and at no cost you can undercut me and give it to millions of others without loss. That's the problem. It's hard to centralize profit when an idea can be replicated forever over the wires. On the flip-side, open-source in particular shows that instead of benefiting the top of the pyramid, wealth can be spread around much more evenly giving everyone the benefits and moving the area of competition to a different market. But this situation while good for the many does not currently lie within what the leaders of the United States of America see as in their strategic interest.

Kudos redhat, kudos.

This is a step in the right direction. Hopefully the US patent system realizes that it's messed up, and now that companies (especially ones that hold as many patents as red hat) are asking for limits on those (which would inevitably annul some of the ones redhat holds) it might be the push that's needed to spark reform.

The Right Thing That Won't Be Done

FTA:
Today the patent system is, if anything, a hindrance to open source.

Sure. Absolutely. The patent system is so out of control that it is, if anything, a hindrance to start-ups, too.

In the words of Dick Cheney, "So?"

What it comes down to is which interest owns more Congressmen. (I'm aware that this is a brief in a court, but any sufficiently broad decision rejecting the idea of software patents would no doubt immediately come under legislative fire).

Also note that even if the scope of "what-is-patentable" is narrowed substantially, there's still hundreds of thousands of bogus software patents out there that aren't going to be deleted with the wave of a gavel, and that would most likely need to be litigated indvidually -- at substantial expense -- before they could be revoked, one-by-one. If they even can be revoked (I'd settle for being rendered officially unenforceable).

Brief is now online.

They have not uploaded their full brief yet online, but promise to post it soon.

TFA now has a link to a PDF of the brief [redhat.com].

This was necessary

With Ubuntu in the market, the big corporation have starting considering Linux as a threat. They're scared because it isn't a regular competitor; they can't buy it out. The GPL ensures this. So now they are trying to get involved and try to commercialize things. Recent developments such as -
http://linux.slashdot.org/article.pl?sid=08/04/08/202227 [slashdot.org]
http://linux.slashdot.org/article.pl?sid=08/03/31/1359204 [slashdot.org]
show what the commercial players are upto. In such a scenario, anybody would be scared, and hence seek legal protection.

And the history of Microsoft is in any case, enough for any company to be afraid of them.

All Large Companies Do It

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit.

You could remove "open source" from the sentence above and it would be just as accurate.

Legislate from the Bench

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.

Software Patents are just about as silly as can be. If one thinks about it, anyone can use patents for PERSONAL or CORPORATE use, that patents should only apply to items being sold/marketed as a product or an improvement to an existing product for sale.

Lets just look at how this works, using some ancient tech, Stills. Lets say that I came up with a process or improvement that increases still production or the quality of the spirits being distilled. I can then market that improvement to all the other still makers, or start marketing stills that have that improvement built in.

However, if Joe Whitelighting makes his own stills, for his own use, and he happens upon building a still with said improvement, built by himself, then the person with the patent has no recourse.

The point of Patents is to get them into use as efficiently as possible. Not to horde patents to ideas and inventions that never get built.

In the case of software patents, Amazon isn't distributing, selling, or otherwise offering for license "OneClick". It is using this patent to keep others from using it, even if the others are building it (or something similar) themselves.

In this case the Patent is being used not to reward Amazon for something they are selling, but rather to punish anyone using a similar or related idea.

Re:Honestly

As much as I hate it, some great software has been developed under the patent system that otherwise might not have been made.

I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products.

Re:Honestly

Name one category of software that would not have been developed without patents and name a few specific products.

Annoying interactive cartoon interfaces. Microsoft Bob. Clippit.

Oh, wait...

Re:Honestly

You might argue that Frauenhofer would not have done the R&D to develop the MP3 encoding without the expectation they could get software patents and charge people for them. Then again, other formats like Ogg Vorbis were developed freely (even if MP3 came first).

Even if such cases do exist, they are more than outweighed by the cases where innovation is blocked, not promoted, by patent minefields.

Re:Honestly

"I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products."

PNG, Ogg Vorbis etc.

Re:

Link to the brief [redhat.com] It was at the bottom of the page.
As for my .02$ I think you should be able to patent compilers, anything else should fall under copyright.

Re:Honestly

As much as I hate it, some great software has been developed under the Copyright system that otherwise might not have been made. A solution? I don't have it.

Fixed that for you!