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Red Hat Patenting Around Open Standards

Posted by Soulskill on 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.

13 of 147 comments (clear)

  1. Defensive Patents by nurb432 · · Score: 3, Interesting

    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 ----
    1. Re:Defensive Patents by dirvine · · Score: 5, Interesting
      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.

    2. Re:Defensive Patents by icebike · · Score: 4, Interesting

      > That's the key behind defensive patents. Other companies won't want to sue you for patent infringement, because they know that you can respond in kind.

      That works till RedHat falls into the wrong hands. If it goes titsup in a bad economy and the receivers sell off its assets to the patent trolls all bets are off.

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    3. Re:Defensive Patents by commodore64_love · · Score: 1, 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.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    4. Re:Defensive Patents by maxume · · Score: 2, Interesting

      Except something like Redhat vs Microsoft is hilariously asymmetric, and there is no mutual or assured involved.

      --
      Nerd rage is the funniest rage.
  2. MS has fired the opening volley of a patent war by Anonymous Coward · · Score: 1, Interesting

    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.

  3. could run afoul of Microsoft actually.. by tjstork · · Score: 2, Interesting

    '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.

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    This is my sig.
  4. Re:Why not simply establish a 'prior art' portfoli by Anonymous Coward · · Score: 1, Interesting

    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.

  5. Re:It always starts out with good intentions by crush · · Score: 3, Interesting

    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

    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.

  6. GPL a pretty good shield. by FlyingBishop · · Score: 4, Interesting

    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.

    1. Re:GPL a pretty good shield. by ites · · Score: 3, Interesting

      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.

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  7. Re:It always starts out with good intentions by DustyShadow · · Score: 2, Interesting

    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

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

  8. MAD not necessarily accepted by both sides by Anonymous Coward · · Score: 1, Interesting

    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.