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

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.

[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.

[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: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.

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.

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: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.

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: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:"...filled against Linux"

[gtall]

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

Gerry

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:"...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"

[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"

[empaler]

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

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