Linux Patent Infringement Lawsuit Filed Against Red Hat/Novell

walterbyrd writes "Just months after the last nail in SCO's case, and on the same day as Red Hat's brave words about patent intimidation, a company filed the first patent suit against the Linux operating system. IP Innovation LLC filed the claim against Red Hat and Novell over U.S. Patent No. 5,072,412. PJ points out there is prior art here: 'You might recall the patent was used in litigation against Apple in April 2007, and Beta News reported at the time that it's a 1991 Xerox PARC patent. But Ars Technica provided the detail that it references earlier patents going back to 1984.'"

Comments

"...filled against Linux"

[tronicum]

Those patents cover GUI patents, they apply to window managers that provide virtual desktops. It has nothing to do with the Linux Kernel itself.

Re:"...filled against Linux"

[hal9000(jr)]

I guess we'll all have to go back to the command line then.

But would it apply to screen? lol

Re:"...filled against Linux"

[gtall]

The company filing the lawsuit has ex-MicroSofties on its payroll, and some were recent hires.

Gerry

Re:"...filled against Linux"

[TheSciBoy]

Wrong. They're not attacking GNU/Linux. They are attacking companies that make money selling Linux. They're not after the people who won't pay for an operating system, they're after the people who will. This suit is against Redhat and Novell, who provide a system with a GUI, that GUI infringes on the patent.

My question is, what product does this company sell that they can claim to have lost revenue on? Or is IP law so crap that there is no need to even have made an attempt at creating a product to be able to sue someone for damages? I mean, I can understand royalties, but damages?

Also, it will be interesting to see when they informed Redhat and Novell of the infringement since they are suing for willful infringement.

Re:"...filled against Linux"

[I'm Don Giovanni]

I'm of the opinion that patents should only be enforced if the patent holder makes a good faith effort to sell products/services that use the patented technology OR the patent holder makes good faith effort to license the technology to others at a reasonable price or through cross-licensing deals, etc.

I don't know what happened in this case. It could be that the patent holder asked Red Hat to license the patent for a fee and Red Hat refused. Given Red Hat's recent statements that suggest that they feel no obligation to honor patents (at least patents held by companies they don't like), it wouldn't surpsise me.

Re:"...filled against Linux"

[maelstrom]

Dude, did you really need to run that as root? You're making me nervous here.

Re:"...filled against Linux"

[ajs318]

I'd go one further and say that patent licencing should be compulsory -- and licencing fees should be the same for every user. In fact, maybe it should be the patent office that sets the amount of the fees.

Anyway, this particular patent will be struck down on examination -- it fails both the novelty and obviety tests (to say nothing of being invalid in most countries in the world). Red Hat should submit a motion that the case is entirely without merit and IP Innovation LLC are being vexatious litigants.

Re:"...filled against Linux"

[khelek]

Do you mind sharing which statements Red Hat made that "suggest that they feel no obligation to honor patents (at least patents held by companies they don't like)"? Because, if I'm not mistaken, Red Hat is the same company that pissed off a bunch of people because they took patents so seriously as to remove software that would cause potential patent problems (mp3 ring a bell?). Please don't confuse Red Hat's refusal to cave to empty saber rattling by Microsoft as a suggestion that they feel no obligation to honor patents. I think history will show differently.

Re:"...filled against Linux"

[trolltalk.com]

"ALL companies have ex-Microsofties on the payroll, with some recent hires. Microsoft is the largest software company in the world. Go ahead, ask around. I'll bet you have a former Microsoft employee on your team! :)"

None here. If there were, I'd be making their life miserable.

Re:"...filled against Linux"

[empaler]

I would, too, if I were you. He did it on your box.

Follow the money

[Anonymous Coward]

Now that Microsoft have taken all they can from SCO FUD, they'll start another attack vector.

Re:Follow the money

[ozmanjusri]

they'll start another attack vector.

Maybe.

IP Innovation LLC is a subsidiary of Acacia, and Acacia recently appointed Brad Brunell, who worked for 16 years at Microsoft as general manager, intellectual property licensing. He's now a senior vice president. Other ex-Microsoft executives have also recently migrated to Acacia.

Acacia are known as patent trolls.

Re:Follow the money

[TechForensics]

You're modded funny, but you're right on the money. This is a new attack from Microsoft as the Groklaw article makes plain. The interesting question is why MS is doing this by proxy, i.e., using straw men they encourage and abet. I seem to recall one provision of the GPL is that if you sue, you lose all rights to GPL code (and surely MS infringes that in places more than OSS tramples on MS patents, if at all). Microsoft is therefore avoiding losing those rights by doing indirectly what it cannot do directly.

However, there is a principle in law (or Equity) that one cannot do indirectly what he cannot do directly. An interesting question for practicing lawyers (I am a retired one and not up on all of this) would be, is there a way to attribute the Plaintiff's actions to Microsoft, canceling their GPL rights? Would it in fact be too late to do this based on their provable support of SCO (the massive loans arranged by MS to keep SCO afloat)? I'd sure like to hear what Eben Moglen has to say about this.

Re:Follow the money

[CmdrGravy]

The reason they're not doing this themselves because if they were to even think about trying they would be dropped down a bottomless pit of IBM et al counter patents.

Since these Acacia people don't actually do anything other than patent troll defensive patent portfolios are useless against it.

Re:Follow the money

[Burz]

This comes right on the heels of Steve Ballmer just suggesting that patent trolls go after RedHat. It was in the same speech he made about their intent to threaten RedHat and get FOSS application developers to write for Windows 'instead'.

Re:Follow the money

[snapp_action]

Wow, after hearing that Acacia has anything to do with this, I am not surprised at all. I worked in the distance education department for a University a few years back. At that time, they were making rounds among the education industry, and sending letters asking for several hundred thousand dollars, or 5% of all profits made from a series of patents.

The patents? "A system of distributing video and/or audio information employs digital signal processing to achieve high rates of data compression" over cable, tv, telephone, and as they were implying, the internet. Their claim was that anyone streaming video or sound needed to pay up. I mean, honestly, transferring compressed data over a medium!? And of course they didn't go after larger University's that flat out told them they wouldn't pay...

Acacia is one of those companies at the bottom of the barrel. Even worse than SCO, because their whole business is suing over patents, like NTP.

Here is the link if anyone's interested: http://www.streamingmedia.com/article.asp?id=8559&c=13

Too Late

[The Aethereal]

Vigilantibus non dormientibus æquitas subvenit

Interesting.

[Aladrin]

I'm going to enjoy watching this play out. It should be noted that this isn't against 'Linux' but appears to be against X... Or maybe KDE... Or Gnome... Or Trolltech's Qt... Or... I'm not really sure because the patent is so vague that it covers just about anything I can think of that does more than 1 thing on the screen at the same time. Even Clippy would violate this patent because it has an input box (workspace) in its dialog while Office is still on the screen.

So they are Suing RedHat and Novell for using whatever it is that violates the patent. Isn't that a bit like suing Dell because Microsoft's OS infringes on a patent and Dell distributes it?

Re:Interesting.

[faloi]

So they are Suing RedHat and Novell for using whatever it is that violates the patent. Isn't that a bit like suing Dell because Microsoft's OS infringes on a patent and Dell distributes it?

You mean like investigating Dell because they sell hard drives that might infringe on a patent?

Re:Interesting.

[Constantine XVI]

It so happens that even Microsoft is violating this patent directly (EXE link warning) http://download.microsoft.com/download/whistler/Install/2/WXP/EN-US/DeskmanPowertoySetup.exe

Re:Interesting.

[langelgjm]

It's good to see that the original inventors and holders of this patent will finally be compensated for their innovation.

Oh wait... the company that holds the patent now (IP Innovation) has nothing to do with the original inventors? Well, I hope any damages they are awarded will encourage them to innovate.

Our patent system is broken.

Re:Interesting.

[dhj]

It's actually not as vague as "multiple windows visible for application" which Clippy would violate. The patent is on the ability of share windows/views between multiple workspaces. So the fact that your application toolbar / "start menu" shows up in multiple workspaces would be a violation of this patent. FYI, ctl-alt-left,right arrow to switch between workspaces in gnome. Also right click the window-title "always on visible workspace" option is a violation of this patent. It's disgusting that companies can buy these patents for the sole purpose of suing people. If Redhat disabled this feature I doubt it would impact a significant portion of the users. Most window managers implement it in some form.

Re:Interesting.

[russ1337]

All this suing shenanigans scares the crap out of me ever starting a business. Become semi-successful and you end up with all the patent trolls banging at your door.

Re:Interesting.

[niiler]

I, for one, would think that the ideas inherent in the X-server (which had its predecessors) would automatically count as prior art as together they imply a multiple desktop functionality existent in the early 1980s if not late 1970s.

Re:Interesting.

[burnin1965]

Our patent system is broken.

I've come to realize that this is a misconception. The patent system isn't broken, corrupt, or overwhelmed. Unfortunately, it is working exactly as it was designed.

From an early age we are taught idealist interpretations of patent law and how it is a wonderful tool to spur innovation, research, business, etc. and provide a level playing field for the little entrepreneur. However, when confronted with the reality of what patent law is, a forced impedement on human nature to invent and create which turns out to be contradictory to the idealistic intent, it is assumed it must be because it is broken.

http://www.movingtofreedom.org/2006/08/31/ben-franklin-on-patents/

In order of time, I should have mentioned before, that having, in 1742, invented an open stove for the better warming of rooms, and at the same time saving fuel, as the fresh air admitted was warmed in entering, I made a present of the model to Mr. Robert Grace, one of my early friends, who, having an iron-furnace, found the casting of the plates for these stoves a profitable thing, as they were growing in demand. To promote that demand, I wrote and published a pamphlet, entitled "An Account of the new-invented Pennsylvania Fireplaces; wherein their Construction and Manner of Operation is particularly explained; their Advantages above every other Method of warming Rooms demonstrated; and all Objections that have been raised against the Use of them answered and obviated," etc. This pamphlet had a good effect. Gov'r. Thomas was so pleas'd with the construction of this stove, as described in it, that he offered to give me a patent for the sole vending of them for a term of years; but I declin'd it from a principle which has ever weighed with me on such occasions, viz., That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.

An ironmonger in London however, assuming a good deal of my pamphlet, and working it up into his own, and making some small changes in the machine, which rather hurt its operation, got a patent for it there, and made, as I was told, a little fortune by it. And this is not the only instance of patents taken out for my inventions by others, tho' not always with the same success, which I never contested, as having no desire of profiting by patents myself, and hating disputes. The use of these fireplaces in very many houses, both of this and the neighbouring colonies, has been, and is, a great saving of wood to the inhabitants.

- Benjamin Franklin, Autobiography Ben knew from the beginning that the patent system was a farce and would have unintended consequences and from its inception there are accounts of its use to enrich those who do not create or to impede a competitive free market.

If Ben was around today I'm sure he would approve of the open source movement and he would likely be called a smelly long haired communist and have chairs thrown at him.

If this doesn't stop EU swpatents nothing will

[javilon]

After this attack, it is clear that changing the EU law and allowing software patents becomes much more difficult.

There are lots of people in EU using linux distributions without any legal concerns that would be very damaged the very day that EU suddenly recognizes this troll patent.

Re:If this doesn't stop EU swpatents nothing will

[cyborch]

Indeed the EU patent law as it is now could (and should) encourage businesses to move from the US to the EU for protection from software patent claims.

This way EU benefits from the extra tax from companies moving to EU and US might be forced to change their law or face loosing lots of tax dollars.

But then again, I might be dreaming...

Re:Its about time!

[ais523]

It could be more difficult than usual; IANAL, but one thing that often happens after a patent infringement claim is a counter-claim with another patent, and then a cross-licensing agreement is often reached to settle the situation. However, this may be a case of patent trolling, where this means of protection doesn't work because the company who owns the original patent doesn't actually make anything related, and therefore cannot have any related patents. Of course, attacking the patent itself or showing that it's inapplicable still work, I think (and hope). Besides, software patents can't be enforced or don't exist in many countries (particularly in Europe), so a patent attack would be unlikely to get rid of Linux altogether.

Start of a patent war?

[Pfhortytwo]

Wasn't http://www.openinventionnetwork.com/ created to combat this sort of event? What happens if the linux camp responds with suites of their own? Looking at OIN's portfolio, some of those patents look rather weighty. Not to mention that Novell, IBM, Redhat, and Sony all support linux and all have extremely large portfolios of their own. Did the principle of M.A.D. that the industry has relied on to keep from imploding just fly out the window? [IANAL, Rampant Speculation, etc, etc]

Re:Start of a patent war?

[jimicus]

M.A.D. is simply a fancy acronym for an idea which has been around for years, and it faces the same problems today as it always did.

Edmund Blackadder summed it up beautifully:

Edmund: You see, Baldrick, in order to prevent war in Europe, two superblocs
        developed: us, the French and the Russians on one side, and the
        Germans and Austro-Hungary on the other. The idea was to have two
        vast opposing armies, each acting as the other's deterrent. That way
        there could never be a war.

Baldrick: But this is a sort of a war, isn't it, sir?

Edmund: Yes, that's right. You see, there was a tiny flaw in the plan.

George: What was that, sir?

Edmund: It was bollocks.

PJ points out no such thing

[Rogerborg]

All patents have to (or at least are supposed to) list similar but distinct prior art, in order to distinguish their own unique invention. You can't point to the disclosed prior inventions on the patent application itself and go "Ah hah, gotcha!". I mean, unless you like to pretend that you're a lawyer on Slashdot.

A couple of things I noticed

[Trevin]

This patent is old, but not yet past the patent expiration date (that's 21 years, isn't it?), so it seems to pre-date any prior art I can think of. That seems to make it plausible.

But this patent was granted to Xerox, NOT "IP Innovation LLC". So why the hell is this 3rd party suing over a patent it wasn't granted?

The content of this patent is given in a language that is so obtuse that I can't tell whether it's describing something that was obvious, or if it's describing a single large virtual desktop, or if it's talking about something completely different than the "workspaces" we're used to seeing today. And I really don't have the time this morning to try deciphering it.

An Acacia subsidiary

[BiggerIsBetter]

Apparently IP Innovations LLC is a subsidiary of Acacia, one of the largest patent troll groups around according to Troll Tracker. IP Innovations has only been around since 2002 with 5 employees and revenues less than $1 million, according to their listing on Fedvendor, so it's quite perverse to be trying to sue over a patent issued to somebody else in 1991...

Re:An Acacia subsidiary

[Iphtashu Fitz]

Make sure that you distinguish between "IP Innovations LLC" and "IP Innovation LLC". (Note the missing 's'). According to the Groklaw article these are two separate organizations. The one involved in this lawsuit is the one without the 's'. Sounds like we could have another round of "Is it SCO or Santa Cruz or The SCO Group or Caldera or..." thanks to the similarity in these names...

But wait...

[gillbates]

So you mean that making a patent deal with Microsoft doesn't really protect Novell from patent infringment suits? Well, isn't that the strangest thing...

I think Novell is about to figure out that no matter how you look at it, they got the short end of the stick in the Microsoft deal. They paid a lot of money so that firms other than Microsoft could sue them for patent infringement. Wonder if they'll just pay off this company like they did Microsoft. Wonder if they can afford to pay off all of the companies that will bring patent infringement suits against them.

What a way to paint a big, red, sue-me-for-patent-infringement-target on their company.

Are they building up a war chest?

[Mark19960]

The more companies and people they sue successfully, the better their chances are.. right?
So, perhaps they are going after what they perceive as the 'weaker targets' in order to solidify this?

So, they go after red hat and novell, hoping they will pay...
IBM, etc have far more cash and they are not going after them because they would get pummeled into the ground.

Smells like a pump and dump, or a pump and sell deal with this patent troll, especially with the M$ goon with them.

Re:An Acacia subsidiary - More Info

[BiggerIsBetter]

More info here.

So let's sum up: a California inventor moves his California shell company to Nevada, and then joins up with another California company, using an Illinois shell, to buy patents from Xerox and then assert them against a California company, a North Carolina company and a Massachusetts company. In Marshall, Texas.

Re:Extra! Extra! Read all about it

[russ1337]

SCO II has arrived.

*PFFFFT*: is the sound of me opening first can of beer while I sit back, feet up, chicken wings at the ready, to watch the action.

This is a game of two halves and four quarters right? Hope they stop for some entertainment mid-trial.

Re:Its about time!

[CmdrGravy]

Yes, exactly. This particular company seems to be the very model of a patent troll company which doesn't do anything that defensive patent portfolios could be used against.

This is exactly what Mr Ballmer said would happen and is the best weapon Microsoft can use in pushing their "Linux infringes patents" attack. Obviously if they were to bring any cases themselves they would be swamped under a wave of counterclaims from Linux friendly companies such as IBM and Novell so this way they have a proxy which cannot be stopped in such fashion and which on the face of it has nothing to do with Microsoft should there be any negative repercussions from the action. I'd expect to see a lot more of this sort thing from now on.

Even if Red Hat go to court, win and have the patent thrown out ( which we hope they will ) it's still going to cost them a lot of money and quite likely drag on for a good long time sapping money and resources which Red Hat would otherwise be using to expand its business. This obviously is to Microsofts benefit and gives them a hook to hang their "Linux is tainted by illegal patents" hat on.

In the worst case scenario Red Hat go to court, lose and the patent is validated costing Red Hat lots of money for damages and an on-going outlay if they're allowed to licence the patent. Even worse than that since Red Hat no doubt use a very similar version of whatever component of the Linux system that everyone else does it's going to be a lot easier for this company to get money from them too. Even worse than that is the situation for freely distributed Linux, obviously there's no one to pay licence fees to use the patent so it's possible that restrictions would somehow be placed on such free distributions ( not sure of the legal situation with one ). Clearly this would be a huge win for Microsoft.

If this patent is thrown out then you can bet there will be hundreds more coming out of the woodwork each one carrying the risks outlined above if they're not thrown out and each one costing Linux companies money to defend against.

As PJ says the real solution is for the US to harmonise it's patent rules with the rest of the world and cut support for all software patents because if what we're seeing now continues the US is going to lose out to other countries where such patent laws are not in effect and Linux can flourish.

Re:Whether we like it or not....

[aichpvee]

I like it!

Re:Gentlemen, start your editors...

[FudRucker]

a workaround wont be necessary, there is prior art...

maybe you can write a letter to the editor...

Anybody remember "Sidekick" for DOS?

[laing]

I'm probably a bit older than your average /.'er so I remember lots of applications that 'violate' this patent. There was a great task switcher called Desqview (Quarterdeck software) too. Toward the end they made a product called "Desqview X" which actually supported the X-window protocol directly under DOS.

Of course Sun had stuff that predates this too. Their Open Look Window Manager (olwm) was around for quite a while before this. Olwm was the first window manager that I used under Linux too. That would have been in 1991 or so which may or may not pre-date the patent.

--
This space for rent

Re:By this you will know...

[10scjed]

I know that Mary Jo Foley asked MS if they were an Acacia client, and still hasn't gotten a response. Interestingly, she says that Novell is apparently an Acacia client - just not for this patent (yet), I guess.

Re:Its about time!

[trolltalk.com]

There is another alternative, which could happen ... all development moves off-shore. Heck, RedHat could just move almost everything to Europe and trade there. (Alan Cox refuses to visit the US because of the stupid software patent issues).

Sell the core system in the US with from RedHat US with no Window Managers, and a link to repositories to download all the Window Managers you want, from software-patent-is-bad countries. Sell the full system everywhere else.

This is just one more step for the US in its continual technological decline. Whole industries are already gone - ram, most hard drives, lcd screens. Why not almost all FLOSS development?

Re:Patent markets DO reward original inventors

[langelgjm]

I think the problem is that patents are being (c) sold to people who have no intention of (a) manufacturing the product themselves, nor (b) of licensing the patent to someone else. In which case, the patent doesn't promote innovation in any way. Sure, the original inventor is monetarily compensated, but if the invention isn't being used at all, what's the point? If the sale of the patent is to someone who is actually going to do something with it, instead of just sitting on it for a decade and then suing people, I wouldn't have a problem with that.

Yep, MS is behind of this

[Vexorian]

It all appears MS is making up a new SCO.

A rational question is to ask "why also Novell"? Yes, we all know Novell and MS are buddies and all so this is a reason to think MS is not behind this lawsuit.

Imho what's going to happen is that Novell will be VERY collaborative and willing to accept to pay royalties for this BS patent, the game will be make Red Hat play alone. The expected aftermath (for MS-Novell) would be to make Red Hat look like a rogue company that does not respect IP. And yes, thanks to Novell the case will be much harder to solve for Red Hat than before, probably Novell will rush in making a deal so there's precedent...

Laugh at the ridiculous theory all you want, I just hope Novell does not prove me right on this one. But if they do, then I hope nobody will argue to me whose side Novell is playing for.

Novell cant make a deal.

[random coward]

Novell could buy a patent license but then they either violate the software license or everyone else gets to use their patent license without having to buy their own.

GPL prevents the distrubution without a license that would be passed right along to Redhat and its customers for free. Besided the patent is more about XWindows/KDE/Gnome than it is about Linux. Sun is the one going to be hurting on this; They use Gnome for Solaris and that is GPL'd. They wont be able to ship Solaris without a license that can then be used by everyone for free, even those who are not Sun customers. The Linux kernel doesn't have a workspace interface; thats a userspace program.

Re:Its about time!

[Seraphim_72]

seems to be the very model of a patent troll company

I am the very model of a modern patent troll company,
I've information that I will hold for law suits that are dear to me,
I know the kings of software, and I sue them quite hysterical
From IBM to Red Hat , in order oh most technical;
I'm very well acquainted, too, with matters about the SCO law suit,
I understand the law, both the simple and the theoretical,
About collecting payment I'm teeming with a lot o' news,
With many cheerful facts about the demise of software use.