Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Red Hat Patenting Around Open Standards

Soulskill posted more than 5 years ago | from the tread-lightly dept.

Patents 147

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.

cancel ×

147 comments

Sorry! There are no comments related to the filter you selected.

Public Service Announcment (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27200297)

All hail Islam, the religion of peace. Refusal to do so will result in death.

Re:Public Service Announcment (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27200929)

In fundamentalist America, or dark-age Europe, Christianity results/resulted in death anyway. No matter if you are/were hailing it.

Re:Public Service Announcment (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27201143)

yeap and that was back then in the middle ages
islam still hasn't grown up.

Re:Public Service Announcment (0, Offtopic)

A12m0v (1315511) | more than 5 years ago | (#27201829)

Look at it this way. Now it is Islam's middle ages. The religion is less than 1500 years old.

Defensive Patents (3, Interesting)

nurb432 (527695) | more than 5 years ago | (#27200299)

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 (5, Interesting)

dirvine (1008915) | more than 5 years ago | (#27200447)

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 (4, Insightful)

SatanicPuppy (611928) | more than 5 years ago | (#27200595)

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 (1)

dirvine (1008915) | more than 5 years ago | (#27200759)

Cheers - but this now sounds like the nuclear proliferation thing - I have got one too - so you had better not press your button, or else.

We all know how effective that is .... or do we !

Re:Defensive Patents (2)

oddityfds (138457) | more than 5 years ago | (#27201051)

That's exactly what it is, which is why the laws and their interpretation at the patent office and the courts must change.

Re:Defensive Patents (4, Insightful)

halivar (535827) | more than 5 years ago | (#27201157)

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 (1)

guruevi (827432) | more than 5 years ago | (#27201761)

Well MAD wasn't all that. The populus on both sides were kept in a constant state of fear (as with terrorism in our days) and the politicians on both sides knew nothing was going to happen. It was all posturing through the media but in the background the channels were open and it was as far as I can see just a ploy to keep the war machine running and have the tax payers buy into it.

MAD not necessarily accepted by both sides (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27201989)

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.

Re:Defensive Patents (4, Insightful)

evilviper (135110) | more than 5 years ago | (#27202151)

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 (2, Interesting)

maxume (22995) | more than 5 years ago | (#27202153)

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

Re:Defensive Patents (1)

moderatorrater (1095745) | more than 5 years ago | (#27200625)

Prior art is a nice idea, but the best way to protect yourself is to get a patent on the idea first. Instead of everyone freaking out about Red Hat getting patents, why not make them license the patents to the community, or at least to the FSF on behalf of the community? If they willingly put themselves under contract not to sue, then that'll solve the problem. Intentions and kind words are all well and good, and I personally believe that Red Hat deserves the benefit of the doubt, but they should make sure that there is no doubt. The fear of litigation could have a chilling effect on those without trust and would make sure that the patents won't get exercised if there's a change in leadership either.

Re:Defensive Patents (1, Interesting)

commodore64_love (1445365) | more than 5 years ago | (#27201613)

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.

Re:Defensive Patents (2, Insightful)

WaywardGeek (1480513) | more than 5 years ago | (#27201993)

Has Red Hat committed not to sue open-source projects? That would be the logical step, if their patents are truly defensive. I'll step in for Red Hat's defense. I personally resisted software patents, which I firmly believe should not be allowed, until a competitor patented work which I had invented first, yet refused to patent. Given the system, we have no choice but to play the game.

Re:Defensive Patents (2, Informative)

Darkness404 (1287218) | more than 5 years ago | (#27202505)

The nice thing about Red Hat is they seem to walk the walk. Even now just about all Red Hat's code is pure OSS, (even if they are overly-picky about trademarks), Google, Sun, Apple, and even Novell are still partially proprietary software vendors even though all of them have made great claims to how they wish to support OSS all the time.

Re:Defensive Patents (0)

Anonymous Coward | more than 5 years ago | (#27200669)

You'd be right that this would be the way to go if all they were worried about was people patenting their ideas. That, however, is not the purpose of defensive patenting. Here's how it works.

Suppose you're a large company developing a large software project. It's very likely that somehow, somewhere, one of your libraries has infringed on someone else's patent, given the sheer number of fairly obvious patents out there. This leaves you vulnerable to a law suit by the company holding the patent. What's more, no one in your company had any idea that the technique you used had already been patented. Fun times.

A defensive patent portfolio is made to discourage other large software houses (IBM, Microsoft) from suing you for patent infringement. You don't ever enforce your ridiculous patent portfolio, but when push comes to shove and someone decides to sue you for infringing on their obvious patent, you countersue them for infringing on _your_ obvious patent.

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. All such a court battle would do is force both companies to temporarily pull their products and pay out attorney's fees. It's bad news for everyone, so you don't get sued.

All of this breaks down, of course, if the company you're up against just acquires patents and doesn't actually make a product...

Re:Defensive Patents (4, Interesting)

icebike (68054) | more than 5 years ago | (#27201023)

> 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 (1)

rattaroaz (1491445) | more than 5 years ago | (#27201299)

Valid point, but remember that all Red Hat code is open source with almost all gpl. You cannot sue some one offensively(can you defensively?) for patents and be consistent with the gpl. I don't trust any company either, but at least there is some comfort here.

Re:Defensive Patents (3, Informative)

Elektroschock (659467) | more than 5 years ago | (#27201305)

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 (3, Informative)

Dachannien (617929) | more than 5 years ago | (#27200763)

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 (2, Insightful)

StuartHankins (1020819) | more than 5 years ago | (#27200815)

Prior art may supposedly be equal to defense, yet it's not the same for many reasons. A clueless PTO and large legal fees to fight a patent once it's granted make it relatively easy to fight off patent challenges while you rake in money in the meantime.

A "good ideas" site won't protect anything from being patented, the only thing that stops a patent from being granted is another patent, and sometimes by changing words around that isn't even enough.

Unfortunately the patent system is hopelessly broken.

Re:Defensive Patents (1)

dirvine (1008915) | more than 5 years ago | (#27201027)

I am not so sure, I know in the UK for instance the first thing searched on an application is the inventor and his site, then even google searches as well as a myriad of professional databases like IEEE. If any prior art exists (in the form of X or Y type) then you will not get a patent.

If your invention is not
1: Novel
2: Inventive
3: Industrially applicable

it will simply not be granted.

It is not perfect though but on the other hand it's not just as flawed and broken as is sometimes made out (even in /.)

Re:Defensive Patents (1)

Elektroschock (659467) | more than 5 years ago | (#27201325)

If your invention is not
1: Novel
2: Inventive
3: Industrially applicable

This is baseless and deceptive. "Inventive" is like "guilty" in inquisition. Words don't actually mean what they say. "Industrially applicable" means no weird bullshit and no perpetuum mobile.

Re:Defensive Patents (1)

shentino (1139071) | more than 5 years ago | (#27201289)

I think that patents have gotten so bad we need to look at the possible criminal consequences of bullshitting the PTO?

Since the USPTO is a *federal agency*, wouldn't that make it, like, a federal offense to knowingly submit a patent application that you KNOW is invalid because of prior art?

I wonder if those patent applications have the familiar "I declare under *penalty of perjury* that the above information is true and correct to the best of my knowledge* clause you often find on federal paperwork.

I think that this should be the case if it isn't already.

And I think that any company that bullshits the PTO by hiding prior art should be indicted on federal perjury charges.

Re:Defensive Patents (1)

Tubal-Cain (1289912) | more than 5 years ago | (#27201999)

Since the USPTO is a *federal agency*, wouldn't that make it, like, a federal offense to knowingly submit a patent application that you KNOW is invalid because of prior art?

That would depend on legislation.
And it could be difficult to prove intent, in any case.

Re:Defensive Patents (1)

MMC Monster (602931) | more than 5 years ago | (#27200983)

The reason for a big patent portfolio is to defend against someone else's big patent portfolio.

I'm not a prognosticator, but.... (5, Insightful)

zappepcs (820751) | more than 5 years ago | (#27200321)

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.

Re:I'm not a prognosticator, but.... (1)

iminplaya (723125) | more than 5 years ago | (#27200607)

...patents which are granted but the patent holder never uses against anyone...

Very trusting you are.

Re:I'm not a prognosticator, but.... (1)

Late Adopter (1492849) | more than 5 years ago | (#27200809)

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.

I am not a patent attorney, but.... (0)

Anonymous Coward | more than 5 years ago | (#27200859)

... 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 [uspto.gov]

Re:I'm not a prognosticator, but.... (0)

Anonymous Coward | more than 5 years ago | (#27201229)

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.

Re:I'm not a prognosticator, but.... (1)

radtea (464814) | more than 5 years ago | (#27202273)

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.

Apple Mac teh Gay Boiz (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27200337)

Friday is my busy day. After I get off work as a substitute gym teacher, I have to race across town to the NAMBLA meeting. [nambla.de] Then it's a quick pit stop at McDonald's for a bite and to check out who is having a Happy Meal in Playland.

Afterward I must zip uptown to the Apple Users' Group meeting. Finally by 11:00 pm it's time to head home with my PowerBook and scope out the K12 chat rooms.

As I said, it's my busy day. If it weren't for my Apple computer, I don't know how I could do it all.

Re:Apple Mac teh Gay Boiz (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27200455)

I'm sure you would find a way. After all yer daddy din't need a Mac.

It always starts out with good intentions (5, Insightful)

HangingChad (677530) | more than 5 years ago | (#27200379)

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 (4, Insightful)

DustyShadow (691635) | more than 5 years ago | (#27200409)

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 (3, Insightful)

hankwang (413283) | more than 5 years ago | (#27200751)

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 (1)

Alain Williams (2972) | more than 5 years ago | (#27200765)

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

You have the wrong end of the stick. Publishing inventions provides a way of proving prior art and thus escaping the effect of a patent. However: there will always be things that were not published before they were patented, patent holders can use these to come against you. I suspect that RH is particularly worried about the recent rise in M$ patent activity (think: Tom Tom).

If RH has some patents of its own, then when <evil company> comes demanding monies, RH can fire back by pointing out that <evil company> infringes some RH patents -- so piss off!

Normally: at this point RH & <evil company> would enter a cross licensing agreement, but I doubt that RH will do that, it will be interesting to see what they do do.

Of course: this does little against the real devils in this game -- the patent trolls, they don't produce anything at all and so do not infringe any patents.

Re:It always starts out with good intentions (1)

oddityfds (138457) | more than 5 years ago | (#27201041)

Normally: at this point RH & <evil company> would enter a cross licensing agreement, but I doubt that RH will do that, it will be interesting to see what they do do.

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.

Re:It always starts out with good intentions (3, Informative)

Anonymous Coward | more than 5 years ago | (#27201291)

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.

Re:It always starts out with good intentions (1)

Tubal-Cain (1289912) | more than 5 years ago | (#27202139)

I suspect that RH is particularly worried about the recent rise in M$ patent activity (think: Tom Tom).

Maybe we'll finally have the complete list of 235 patents MS says open source infringes on.

Re:It always starts out with good intentions (1)

blitzkrieg3 (995849) | more than 5 years ago | (#27200879)

The reason Red Hat files patents is to stockpile it's ammunition in case someone sues them for patent infringement [groklaw.net] . It's very hard to sue a patent trool like IP innovations, since they don't have a product which can violate another patent. But a company like Microsoft [slashdot.org] has a large product portfolio which might contain a product for which Red Hat can sue.

It's kind of like the nuclear arms race, and yet this is the state of the US Patent system today.

Re:It always starts out with good intentions (1)

TheTurtlesMoves (1442727) | more than 5 years ago | (#27201361)

The patent office does not have a history of checking prior art. They seem to just rubber stamp anything if worded in a confusing enough manner. The legal system has a habit of assuming that an issued patent is valid by default and will give an injunction till its run its way through the courts. So even if the prior art turns out to be valid prior art, you have been shutdown and in litigation for years, assuming your not already bankrupted.

But here is the real rub. If its obvious, why would it be published? You don't go around publishing blindly obvious things, and even if you do, there is still some other blindly obvious detail you left out.

Re:It always starts out with good intentions (2, Interesting)

DustyShadow (691635) | more than 5 years ago | (#27201403)

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 [bitlaw.com]

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

Re:It always starts out with good intentions (1)

TheTurtlesMoves (1442727) | more than 5 years ago | (#27202473)

Hence defensive patents. QED

Re:It always starts out with good intentions (1)

CarpetShark (865376) | more than 5 years ago | (#27201823)

All Red Hat really needs to do is publish the inventions instead of patenting them.

Ah, but that would hardly help them recover their position as Linux market leader, from Ubuntu.

Re:It always starts out with good intentions (1)

pembo13 (770295) | more than 5 years ago | (#27202155)

You do not understand what they are attempting to do. This is defense against other patents.

Re:It always starts out with good intentions (0)

Anonymous Coward | more than 5 years ago | (#27200643)

wouldn't it make sense for them to donate them to an open source patent pool

Redhat ARE founder members of the OIN defensive patent pool. I expect that's pretty much what they intend?!

Re:It always starts out with good intentions (1)

devman (1163205) | more than 5 years ago | (#27200673)

They do in a sense because they use these patents in GPL software which they publish.

Re:It always starts out with good intentions (0)

Anonymous Coward | more than 5 years ago | (#27200681)

Red Hat can't use their patents offensively.
If they did, the backlash would crush them.

Re:It always starts out with good intentions (4, Insightful)

itsdapead (734413) | more than 5 years ago | (#27200703)

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 (4, Insightful)

crush (19364) | more than 5 years ago | (#27200843)

Red Hat's public promise [redhat.com] 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 [openinventionnetwork.com] . That would make this worry completely invalid.

Re:It always starts out with good intentions (1)

MMC Monster (602931) | more than 5 years ago | (#27201003)

One would wonder if the promise is transferable to the new owners if Red Hat were to be bought up in the far future.

Re:It always starts out with good intentions (3, Interesting)

crush (19364) | more than 5 years ago | (#27201069)

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 [openinventionnetwork.com]

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 (1)

ducomputergeek (595742) | more than 5 years ago | (#27202199)

But as the grandparent said, that's the current management. In five or ten years when this management team retires or are replaced with a new crop of MBA's that play from the Havard MBA playbook, i.e. how can I make the most money in the next x number of quarters so I get my bonuses no matter what it does to the long term health of the company, it may be a different story.

Red Hat is a public traded company. Eventually it will surcome to the will of the investors who have a stake in the company. And many of those shareholders will give to flips about opensource. What they want to see is how well you make your profit forecast for next quarter.

Re:It always starts out with good intentions (0)

Anonymous Coward | more than 5 years ago | (#27202385)

Free Software/Open Source is not just GPL. BSD-style licenses allow for taking the source and creating a closed-source project from it. So isn't Red Hat's promise restricting the rights of those who create software under BSD-style licenses? Isn't it handicapping them and forcing them to behave in a GPL-like manner?

Re:It always starts out with good intentions (1)

mysidia (191772) | more than 5 years ago | (#27200771)

It would make sense for them to distribute software that utilizes the patents as open source under the GPL, and license the patents for free use in the GPL-encumbered software, as required by the GPL.

Effectively, allowing people to use the patent, as long as they follow the GPL, in distributing their products.

Re:It always starts out with good intentions (4, Informative)

MSG (12810) | more than 5 years ago | (#27200937)

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 [openinventionnetwork.com] , a group dedicated to creating a pool of defensive patents, that is likely to happen.

MS has fired the opening volley of a patent war (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27200499)

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.

Re:MS has fired the opening volley of a patent war (2, Funny)

cjjjer (530715) | more than 5 years ago | (#27200705)

And Microsoft's defeat is INEVITABLE

Just like this will be the year of Linux...

Re:MS has fired the opening volley of a patent war (1)

MillionthMonkey (240664) | more than 5 years ago | (#27201353)

Oh yeah? You just wait until Red Hat's patents expire and Microsoft comes out with Windows Ubuntu Server 2029!

Re:MS has fired the opening volley of a patent war (1)

maxume (22995) | more than 5 years ago | (#27201537)

DeBeers does okay.

Anyway, while it is pretty clear that many types of software are commodities, it really isn't so clear that all software is a commodity.

Re:MS has fired the opening volley of a patent war (1)

aaron.axvig (1238422) | more than 5 years ago | (#27201703)

Look, people are using an 8 YEAR OLD OPERATING SYSTEM and saying it rocks instead of switching to A BRAND NEW FREE OPERATING SYSTEM.

Yes, Microsoft is on it's last knees indeed.

Re:MS has fired the opening volley of a patent war (1)

machine321 (458769) | more than 5 years ago | (#27201791)

Wait, Red Hat... that's Linux, right? Which side am I supposed to be on again?

Why not simply establish a 'prior art' portfolio.. (1)

Assmasher (456699) | more than 5 years ago | (#27200501)

...Red Hat's reasoning is suspect, as is there motivation.

Re:Why not simply establish a 'prior art' portfoli (1)

Assmasher (456699) | more than 5 years ago | (#27200557)

Ugh... My grammar is suspect as well 'their' (apologies.)

Re:Why not simply establish a 'prior art' portfoli (0)

Anonymous Coward | more than 5 years ago | (#27200571)

...Red Hat's reasoning is suspect, as is there motivation.

Redhat is being constantly hit by patent trolls. Their reasoning seems quite obvious.

Re:Why not simply establish a 'prior art' portfoli (1, Interesting)

Anonymous Coward | more than 5 years ago | (#27200941)

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.

Re:Why not simply establish a 'prior art' portfoli (3, Insightful)

TheRaven64 (641858) | more than 5 years ago | (#27201279)

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.

Re:Why not simply establish a 'prior art' portfoli (2, Informative)

mysidia (191772) | more than 5 years ago | (#27200819)

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).

Re:Why not simply establish a 'prior art' portfoli (1)

argiedot (1035754) | more than 5 years ago | (#27202515)

RedHat is a member of the Open Invention Network [openinventionnetwork.com] . 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.

linux fags with their heads up their ass (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27200525)

this is the cost of modern business boys. if you don't like it you can just get the fuck you, you smelly bitches.

linux is going to undergo a big change if it's to survive. those who keep bitching up a storm about business are going to be left eating dog food under a highway overpass.

could run afoul of Microsoft actually.. (2, Interesting)

tjstork (137384) | more than 5 years ago | (#27200529)

'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.

Re:could run afoul of Microsoft actually.. (1)

mysidia (191772) | more than 5 years ago | (#27201001)

According to the published application, the filing date is Filed: August 31, 2007

The invention date was prior.

Their patent doesn't mean they invented something in 2009, it means they invented something probably 4 or 5 years ago.

I'm not sure Biztalk can be counted as prior art.

I often dream... (1)

ErrataMatrix (774950) | more than 5 years ago | (#27200553)

of a world without patents.

Re:I often dream... (2, Funny)

maxwell demon (590494) | more than 5 years ago | (#27200725)

of a world without patents.

You should patent that idea! :-)

Defeat_Globalism ? (4, Funny)

Easy2RememberNick (179395) | more than 5 years ago | (#27200711)

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?

Re:Defeat_Globalism ? (1)

npsimons (32752) | more than 5 years ago | (#27202099)

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?

Yes. Yes you are the only one :)

Being serious, though, the anti-globalism people suffer from a framing problem. Much as I hate the goals of the ID crowd, I have to admire their tactics. "Framing [wikipedia.org] " a situation properly can give you significant advantages, whether you're right or wrong. For instance, "anti-globalism" isn't really against "globalizing" things; what they are against is inequalities or imbalances of power between different classes of people. For instance, if a company can outsource my job to another country, but I can't move to that country to compete for that job, that is an imbalance of power and is really what the problem is. There needs to be a re-balancing where the pay in the outsourcing country is comparable to the pay in the outsourced country. While globalism might accomplish this (eventually), the process will be long and painful and the situation shouldn't have existed in the first place.

In other words, people should stop calling themselves "anti-globalism" and instead say they are in favor of "fair and equitable employment opportunities" or in favor of "free trade and freedom of movement."

Protection Racket* (1)

DynaSoar (714234) | more than 5 years ago | (#27200837)

"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.

Re:Protection Racket* (1)

oddityfds (138457) | more than 5 years ago | (#27200991)

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.

Troxler v. Pine (1)

tepples (727027) | more than 5 years ago | (#27201765)

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 [patentlyo.com] .

For trademark, yes.. (1)

Junta (36770) | more than 5 years ago | (#27201025)

For patents, no, I believe a patent holder is free to ignore 'infringement' at their option.

Re:Protection Racket* (1)

atomic-penguin (100835) | more than 5 years ago | (#27201203)

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.

This is certainly true of trademarks. If the owner of a trademark does not act on infringement, they may not be able to defend their rights to this trademark in court. But owners of patents can selectively choose who has to pay, and who does not have to pay, for licensing any technology covered by a patent. Now I am not a patent lawyer, but a perfectly good example is the LZW compression algorithm. Unisys did not enforce its patent on LZW compression in GIF images for 7 years. Ten years after the initial patent was filed, LZW had been in widespread use through image formats such as GIF and TIFF for 7 years. During those 10 years, Unisys had only licensed LZW to a few modem manufacturers, and Adobe for the PostScript format. Finally in 1994, Unisys announced that any code capable of reading and writing the LZW compression algorithm must be licensed. The point is, not enforcing a patent does not affect the ability to enforce licensing of said patent.

Red Hat's deal is nearly the complete opposite (4, Informative)

crush (19364) | more than 5 years ago | (#27200975)

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 [redhat.com] 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.

Re:Red Hat's deal is nearly the complete opposite (0)

Anonymous Coward | more than 5 years ago | (#27201133)

You are confused. Novell never admitted that it or any FLOSS software infringed on any Microsoft patents. The deal only protects their customers in the off chance that any do infringe. Microsoft's customers are also protected in case any of Micrsoft's software infringes on any of Novell's patents.

It's a "better safe than sorry" agreement.

Novell have also spent a lot of money defending FLOSS from SCO and patents by buying up a ton of patents and contributing them to OIN (not to mention donating many that they already had).

By badmouthing Novell, you are only doing Microsoft a favor by splitting the FLOSS community and helping them to destroy their competition. United we stand, divided we fall.

Re:Red Hat's deal is nearly the complete opposite (1)

crush (19364) | more than 5 years ago | (#27201225)

United we stand, divided we fall.

Indeed. And by dividing itself and its customers from the rest of the Linux community Novell is helping to make it fall. To rub salt in the wound Novell continues pushing Mono and C# into every corner of the desktop potentially opening up further litigation opportunities to Microsoft.

Re:Red Hat's deal is nearly the complete opposite (1)

Antique Geekmeister (740220) | more than 5 years ago | (#27202593)

Microsoft apparently saw this as a way to patent manage increasing Linux compatibility, especially that core Samba developer, Jeremy Allison. And you know what? Even though the deal has failed, it worked to slow down Jeremy Allison and his work by driving him away from Novell. So to Microsoft, it was probably worth the money they've wasted.

I Believe in Trolls (1)

MSG (12810) | more than 5 years ago | (#27201085)

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.

Re:I Believe in Trolls (1)

ites (600337) | more than 5 years ago | (#27201209)

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.

All patenting around open standards is a concern, both to developers of the standards, and users. A patent holder's intentions may, and often do, change over the course of the 20 years the patent may exist.

In this case, Red Hat seem to be seeking "ownership" of areas around the standard. They don't need to sue anyone to establish this, that is a straw man. The simple fact of owning patents is enough to scare potential customers away from competitors.

I've personally worked with Red Hat in fighting software patents in Europe but would not consider this story to be a troll. Any FOSS firm that is willing to spend money on patents, but not the fight against software patents (and I can tell you that to the best of my knowledge RHAT are not funding the main European groups against software patents), is working the wrong side.

So this story seems relevant if only to highlight how behaviour changes when money is involved.

When Red Hat seek software patents around an open standard, that's news.

Nothing to see here, move on. (2, Informative)

oddityfds (138457) | more than 5 years ago | (#27201145)

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.

Re:Nothing to see here, move on. (2, Informative)

atomic-penguin (100835) | more than 5 years ago | (#27201241)

Yeah, the way I saw that deal was both companies agreeing to not step on each others toes in terms of their own Virtualization platforms. Neither Red Hat or Microsoft want to give EMC/VMWare any more of a competitive edge. It would be platform suicide for either company to explicitly not support the other company's operating system on their Virtual platform.

It seems to me to be CYA (1)

josepha48 (13953) | more than 5 years ago | (#27201175)

If you have been paying attention to the way lawsuits work these days, company A sues company B for patent infringement and then company B counter sues company A for patent infringement. My guess is RedHat is covering their butt in the event someone sues them they can counter sue.

RedHat has been pretty good to the open source community in the past.

GPL a pretty good shield. (4, Interesting)

FlyingBishop (1293238) | more than 5 years ago | (#27201273)

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. (3, Interesting)

ites (600337) | more than 5 years ago | (#27201383)

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.

Divide and conquer (1)

hilather (1079603) | more than 5 years ago | (#27201907)

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.

patent trolls are a problem (0)

Anonymous Coward | more than 5 years ago | (#27202427)

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

Not "Open Source" (1)

SwashbucklingCowboy (727629) | more than 5 years ago | (#27202749)

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?

Load More Comments
Slashdot Login

Need an Account?

Forgot your password?