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.

Comments

Defensive Patents

[nurb432]

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?

Re:Defensive Patents

[dirvine]

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.

Re:Defensive Patents

[SatanicPuppy]

It's not about that. It's about mutually assured destruction. You can sue me, sure, but I can sue you too, so do you really want to start this dance?

If you just posted prior art, all you're doing is protecting stuff that you came up with yourself, and even then, you may still have to prove your prior art in court. It doesn't help in a situation where another company has patented some BS that they claim applies to everything you do.

Re:Defensive Patents

[Dachannien]

Why not simply publish the spec in wikipedia and as many lists as possible (including your own web site).

That's probably the cheapest route, but the safest route (if all you want in terms of defense is publication rather than a war chest of patents for warding off lawsuits) is called a Statutory Invention Registration. It's cheaper than filing a patent, and it doesn't stake out any invention territory (meaning that if someone duplicates the invention laid out in the SIR, you can't sue them for infringement based on the SIR). But it will show up in the search tools used by US patent examiners, and it establishes a prior art date, so that it can easily be found by examiners for the purpose of rejecting future applications.

Actually, IBM did something similar back in the 70s - they published a series of Technical Disclosure Bulletins, where they disclosed a bunch of things they had come up with but that they weren't interested in patenting. They just didn't want anybody else patenting it and then suing them over it. The USPTO has all of that IBM stuff in its search databases as well.

Re:Defensive Patents

[icebike]

> 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.

Re:Defensive Patents

[halivar]

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.

Re:Defensive Patents

[Elektroschock]

Exactly. It does not work because it does not protect against patent trolls and normal business players won't sue you as they patent for defensive purposes and maybe just want licensing fees.

With your portfolio you could countersue IBM but what to do against Eolas and Sisvel? Oh, and a patent lawsuit costs 500k.

Re:Defensive Patents

[evilviper]

Mutually-assured destruction worked exactly as intended, in preventing nuclear war for over 50 years.

Not really.

After WWII, the US had several years as the only nuclear-armed nation, and yet didn't attack the Soviet Union.

The US developed the fusion bomb before the USSR, making it the first with the "assured-destruction" scale weapons, where little if any retaliation would have been possible, and yet didn't use that opportunity.

From the 50s through the 60s, the US was pretty well assured that, with a full nuclear first strike, it could almost entirely eliminate the retaliatory threat from the USSR. Again, it didn't happen.

The USSR had to adapt it's nuclear submarine fleet for extended operation under the Arctic polar ice cap just to establish a guaranteed retaliatory capability.

At best, there was about 20 years of MAD.

Re:Defensive Patents

[pieterh]

Translating the patent jargon for you:

If your s/invention/patent/ is not
1: s/Novel/freshly written/
2: s/Inventive/written in complex lawyer language/
3: s/Industrially applicable/says "machine" a few times/

it will simply not be granted

ftfy.

I'm not a prognosticator, but....

[zappepcs]

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.

It always starts out with good intentions

[HangingChad]

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?

Re:It always starts out with good intentions

[DustyShadow]

All Red Hat really needs to do is publish the inventions instead of patenting them. That would create prior art. That doesn't always work however because patent examiners have little time to do prior art searches and often just rely on what the inventor supplies them with. Then if they do searches, they usually only search patents and patent applications. Once a patent is granted, it is given a presumption of validity and it is very costly for a defendant to overcome that presumption even when you have prior art that is directly on point.

Re:It always starts out with good intentions

[itsdapead]

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.

Aye, there's the rub! Particularly when the sorts of companies the patents might be used defensively against could probably afford to bankroll a hostile takeover if Red Hat got too anoying.

Obtaining patents and then releasing them under an irrevocable public license seems like the only way to avoid this - but then you'd still need a clever, bulletproof "GPL-for-patents" public license to ensure that they could still be used defensively. The first test case of such a license would be, er, fun... (Unlike GPL, it could end up being infectiously viral, because you don't have to consciously copy anything to violate a patent).

My suspicion is that the the mutually assured patent portfolio destruction concept only really works for superpowers with very deep litigation pockets. Part of the problem is, the patent system is so broken and full of invalid patents or patents on minor variations of other patents, nobody really knows whether they are holding a doomsday device or a shiny casing full of pinball machine parts...

Re:It always starts out with good intentions

[hankwang]

All Red Hat really needs to do is publish the inventions instead of patenting them. That would create prior art.

That isn't the purpose of a defensive patent. The idea is that if Company X tries to sue Red Hat for patent infringement, then Red Hat can countersue for the infringement of Company X on one of RH's defensive patents. Either that or RH and Company X simply agree on cross-licensing their respective patents to each other.

Re:It always starts out with good intentions

[crush]

Red Hat's public promise to never use their patents against Free or Open Source Software surely nullifies any such worry? As Red Hat are one of the main contributors to the Open Invention Network I would hope that they will add this patent to the other ones currently mutually held by OIN to defend FLOSS against patent attacks. That would make this worry completely invalid.

Re:It always starts out with good intentions

[MSG]

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?

As Red Hat is a member of the Open Invention Network, a group dedicated to creating a pool of defensive patents, that is likely to happen.

Re:It always starts out with good intentions

[crush]

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.

Re:It always starts out with good intentions

[Anonymous Coward]

They might, but to be consistent with what they've done before and with their stated intentions they would have to licence the other party's patents for all open source software (or perhaps all GPL:d software). I think they'd do that, even if they have to throw some cash into the deal as well.

News Flash Red Hat ALREADY did that:

http://www.redhat.com/about/news/prarchive/2008/patent.html

Red Hat was the first company ever to protect Open Source downstream as well as itself in a patent settlement.

I think this says a lot about the genuine stance about patents from Red Hat.
They are needed to be able to reach deals like the one above.

Defeat_Globalism ?

[Easy2RememberNick]

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?

Red Hat's deal is nearly the complete opposite

[crush]

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.

GPL a pretty good shield.

[FlyingBishop]

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.

Re:GPL a pretty good shield.

[ites]

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.

Re:Why not simply establish a 'prior art' portfoli

[TheRaven64]

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.

The Red Hat Patent Promise and Estoppel

[gdek]

"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.