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Red Hat Patenting Around Open Standards
I Believe in Unicorns writes "Red Hat's patent policy says 'In an attempt to protect and promote the open source community, Red Hat has elected to... develop a corresponding portfolio of software patents for defensive purposes. We do so reluctantly...' Meanwhile, USPTO Application #: 20090063418, 'Method and an apparatus to deliver messages between applications,' claims a patent on routing messages using an XQuery match, which is an extension of the 'unencumbered' AMQP protocol that Red Hat is helping to make. Is this a defensive patent, or is Red Hat cynically staking out a software patent claim to an obvious extension of AMQP? Is Red Hat's promise to 'refrain from enforcing the infringed patent' against open source a reliable contract, or a trap for the unwary? Given the Microsoft-Red Hat deal in February, are we seeing Red Hat's 'Novell Moment?'"
Reader Defeat_Globalism contributes a related story about an international research team who conducted experiments to "quantify the ways patent systems and market forces might influence someone to invent and solve intellectual problems." Their conclusion was that a system which doesn't restrict prizes to the winner provides more motivation for innovation.
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?
---- Booth was a patriot ----
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.
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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?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Given that Microsoft has fired the opening volley in a patent war on Linux, does Red Hat really have any other options?
Microsoft is a large and powerful beast. It won't go down to its inevitable defeat to open source quietly.
And Microsoft's defeat is INEVITABLE. Open source is nothing more nor less than the commoditization of software. Fighting commoditization in any market is futile.
...Red Hat's reasoning is suspect, as is there motivation.
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'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.
This is my sig.
of a world without patents.
Ugh... My grammar is suspect as well 'their' (apologies.)
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...Red Hat's reasoning is suspect, as is there motivation.
Redhat is being constantly hit by patent trolls. Their reasoning seems quite obvious.
...patents which are granted but the patent holder never uses against anyone...
Very trusting you are.
What?
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?
I would be worried that such a tactic legitimizes the system. Wouldn't a continuation of the current string of ridiculous lawsuits from patent trolls draw far greater attention to the fact that it is the law itself that is broken?
Defending oneself against patents with patents themselves seems like an unstable solution.
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).
"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 acknowledgement of their ownership as a sort of no-fault first step. They can pick and choose within reasonably equitable parameters what or how much they require from the infringer in each case according to profits (including potential profits) to be made by the infringer. Obviously in the case of FOSS use, there'll be no profits and so no recovery necessary.
* That's "racket" as in noise, not the criminal activity.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
... I know there is more than one kind of patent.
* Defensive Publication (DEF)- Issued instead of a regular utility, design, or plant patent, it offers limited protection, defensive in nature, to prevent others from patenting an invention, design, or plant. The Defensive Publication was replaced by the Statutory Invention Registration in 1985-86.
* Statutory Invention Registration (SIR)- This document replaced the Defensive Publication in 1985-86 and offers similar protection.
From http://www.uspto.gov/go/taf/patdesc.htm
think about what you just said. They are being attacked by patent trolls. Patent trolls don't have products. They cannot possibly infringe patents because they don't have products. Therefor applying for your own patents does not provide you with any sort of protection.
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 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.
For patents, no, I believe a patent holder is free to ignore 'infringement' at their option.
XML is like violence. If it doesn't solve the problem, use more.
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.
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.
RedHat has been pretty good to the open source community in the past.
Only 'flamers' flame!
Does slashdot hate my posts?
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.
You are confusing trademarks and patents.
Trademarks must be actively defended or you risk dilution and the mark can become generic and you loose any protection on it, as happened to Aspirin.
Patents don't risk any dilution, there is no provision to actively enforce patents. You can forget about a patent for 15 years and then suddenly "remember" about it and start demanding royalties by whoever happens to use it... that's how submarine patents, used by patent trolls, work after all.
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.
Not really. A patent portfolio doesn't help against patent trolls. A patent troll, by definition, doesn't produce anything, and therefore doesn't infringe any patents.
Patents are purely negative. All they allow you to do is prevent other people from making and distributing something. I can file a patent which requires a patent you own to work, and I can license it to other people without your permission. The people I license it to may need your patent as well, but how they get it (cross-licensing deals, buying it outright, or whatever) is not my problem.
If a patent troll sues Red Hat for infringing their patent, then a parent portfolio doesn't help. Red Hat can't say 'you can't sue us, we have loads of patents.' The other company will just say 'what do we need patents for?' and continue with the suit.
Defensive patents only work against big companies like IBM or Microsoft who are almost certainly infringing your patents for something.
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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 .
Look at it this way. Now it is Islam's middle ages. The religion is less than 1500 years old.
GENERATION 25: The first time you see this, copy it into your sig on any forum and add 1 to the generation.
These patent deals have divided the Linux community. Microsoft is using patents to destroy Linux, they just aren't fighting the way you thought they would.
Mutually-assured destruction worked exactly as intended, in preventing nuclear war for over 50 years. I see no reason why those lessons can't be exported to business... a diplomacy of a different kind.
You're assuming that the other side also subscribed to MAD. From 1960-65 the official Soviet strategy considered was actually a pre-emptive strike was possible (p. 154 of [1]):
This euphoria only started to wane in '65, and it wasn't until '72 that the Soviet leadership saw simulations on how devastating a US first strike could be. From 1975-80 limited nuclear war was officially rejected as an option, but the possibility of a non-nuclear was an option.
The more informed elements in the Soviet military didn't bother defining "victory" in a nuclear war by the early '70s, but simply assumed / hoped some pockets of civilization would survive in the Soviet Union (not a bad assumption given its size). A good portion of leaders assumed that the US was preparing for a surprise first strike.
[1] http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB585.pdf
So, in general, don't assume the other side is thinking the same way you are.
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 matter how good-hearted and trustworthy people might feel Red Hat is today, there is no telling what might happen to them tomorrow. They might go bankrupt, and their debtors realize they could get a lot of money by using the patent portfolio offensively.
So I don't buy it: every software patent is a bomb waiting to go off, and creating more of them seems like a really bad idea as way to reform the patent system. They are too likely to simply act as a temptation to evil bastards, of whom their are no shortage in the corporate world, to go after the short-term gains they represent.
Blasphemy is a human right. Blasphemophobia kills.
By being a patent troll, albeit with good intentions, you may be able to stop other patent trolls who's only business plan is litigation.
Details can be found here:
http://www.boliven.com/patent/US20090063418
RedHat is a member of the Open Invention Network. 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.
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?
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....
What person will donate an airborne act of love?
I'm sure that Red Hat would love to see patents that are safe for Linux, and unsafe on other platforms. Note that AMQP implementations run on Linux but also on Solaris, AIX, Windows, QNX, and OpenVMS.
OIN is not the answer to a bad patent that squats beside an open standard. There is no answer except to withdraw that patent application and stop using software patents for anti-competitive purposes.
Red Hat have particularly much to lose by seeking aggressive software patents. I'm surprised they did this.
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Given the Microsoft-Red Hat deal in February, are we seeing Red Hat's 'Novell Moment?
Quite the contrary, At the time of Novell's "deal" Microsoft also came to Red Hat, who turned it down.
The "deal" you refer to above is simply an open agreement to validate each other's OS's in their respective virtualization environments.
The push for this seemed to come from Red Hat customers who wanted to run Windows Server variants virtualized inside of RHEL.
"Red Hat will validate Windows Server 2003 SP2, Windows 2000 Server SP42, and Windows Server 2008 guests on Red Hat Enterprise virtualization technologies.
Microsoft will validate Red Hat Enterprise Linux 5.2 and 5.3 guests on Windows Server 2008 Hyper-V (all editions) and Microsoft Hyper-V Server 2008."
source: http://truthhappens.redhat.com/2009/02/16/red-hat-and-microsoft-expand-server-virtualization-interoperability/
Have a squat over at the hobo house.
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 expand further, at least until the state of software patents is more firmly established in the wake of the Bilski case.
Red Hat is loaded heavily with true believers, and management isn't dumb enough to do what Novell did and alienate the developers. The freedom of open source software extends to the professional developers as well, since they can take their skills elsewhere with no loss of value. As long as Red Hat keeps growing, I'm not particularly worried about them abusing their patent portfolio or any other leverage they may have to impair competition in the market. Once they saturate the market and have to start fighting tooth and nail just to avoid shrinking, then we'll really see those ideals put to the test.
There's no failure quite as dissatisfying as a complete and total solution to the wrong problem.
Has the OIN retaliated against Microsoft for the FAT attack on TomTom? Patents are used by the big boys to keep most people out of the game.
See claim 14 of this patent, 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 answering the question posed by the article, yes we can trust Red Hat to uphold their promise, because to break it would destroy their business model, since they would lose their right to distribute GPL software that uses the patent. As long as software patents and threats from patents held by companies like Microsoft exist, defensive patents are regrettably needed as a deterrent to protect Free Software.
RedHat is Microsoft for Linux distributions, so how is it surprising that they are putting patents in place around open standards they are pushing? This is an excellent offensive against other open server providers like ubuntu/novell who may attempt to offer competing messaging products in the open-source space.
If they really only wanted to be "defensive", they could just simply publish the prior art.
"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, 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.
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?
If Red Hat patents it's OS coding, is it still Open Source ?
We shove Jimmy Dean Homestyle Pork Sausage up The Profit Muhammad's ass. Then while the Giver strokes me off I shoot my wad in The Profit Muhammad's face after which we force The Profit Muhammad to fellate an 800 pound Chester White. Simultaneously two Hasidic rabbis open their kosher bowels unleashing torrents of gefilte shit on The Profit Muhammad's head and back while The Giver pumps The Profit Muhammad from behind. After the hog shoots its wad in The Profit Muhammad's mouth The Giver shoots his load up The Profit Muhammad's rectum. Then unexpectedly the Chester White roots out The Profit Muhammad's penis and testicles hungrily biting them off gobbling them down with full porcine fury. We bury the newly castrated The Profit Muhammad up to his nose in pig manure. Two AIDS infected Bowery whores stuff their used condoms and clotted tampon down The Profit Muhammad's throat and crack a bottle of Mad Dog 20/20 over his skull.
We then leave him for the hogs to munch on. The Profit Muhammad is swine feed and by tomorrow he will be swine manure.
GOAT KORAN
For it is written in Mine book that goats are PLEASING and HOLY in Mine eyes. I have told the Prophet Muhammad peace on him! that he should try a goat but he is an ass-infidel and pursues young Muslims. For this is pleasing in Mine eyes as well! I hereby issue a Fatwah: May the asses of the infidels be reamed by the Prophet peace on him! until they look like the goatse.cx man who is of the devil.
M______The
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o____Prophet
h____Muhammad
a___./___o\
m___I______|
m___I____\==
a___\______/
d______||
F______:;\________________________Muslims
u______:;\\_______________________/______\
c______:;_\\_____________________/________\
k______:;__\\____________________/__o__o__\
s______:;___&&___:;:;:;:;:;:;:;:;|____>___/
A|_\\__:;________:;_________:;_____\----/
s|__\\_:;_______:;___________:;_
s|___\\:;:;:;:;:;_____________:;:;
ISLAM
Kill all Muslims. Kill all Muhammadans. Kill all Arabs. Kill all Towel Heads. Kill all Camel Jockeys. Kill all Sand Niggers. Kill all Dune Coons. Kill all Islam. Nuke their countries to hell. Nuke them again. Death to Islam. I piss on Mecca. I spit on the Koran. I shit on
I as a disclaimer, I work with Red Hat on a regular basis for a major government entity. I think that the patenting of a messaging protocol - like AMQP and IBM's MQ are necessary to protect the integrity of the protocol. It helps prevent someone like Microsoft or IBM from coming in an taking over control of of an open-source project. In my opinion, it's similar to the issues that Dr. Victor Yodaiken had with the RTLinux patent.