Red Hat Seeks Limits on Software Patents

eldavojohn writes "RedHat went to the Federal Circuit Court of Appeals asking for limits on software patents yesterday. They have not uploaded their full brief yet online, but promise to post it soon. Here's a tidbit: 'Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.'"

Patents

[omeomi (675045)]

I remember hearing once that companies like IBM often build a stockpile of patents, not so much to litigate, but so nobody else can tell them what to do with patents they don't have. Even if you're infringing on somebody else's patents, if you have enough patents of your own, you can probably find one that they're infringing on, and you've essentially come to a stalemate, so everybody's happy. Only works for the big players, though. The little guys get screwed.

Re:Patents

[Sanity (1431)]

Nope, IBM is guilty of abusing their patents, they aren't purely defensive. See this story [forbes.com] from the 1980s.

Re:Patents

[Tanktalus (794810)]

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies? I'm not saying that IBM doesn't still do that, but at least find something recent. For example, without actually looking it up to find a reference, I'm sure I've heard within the last 5 years that IBM makes somewhere around $1B per year on licensing their patents. I'm not sure how the shakedown goes, but I can't imagine it being a pleasant experience for most licensees.

Even then, that doesn't take away from the GP's point: if IBM didn't have the patents, it would likely cost IBM far, far more in license costs than $1B/year (just using the deep-pockets theory of lawsuits, and IBM has DEEEEEP pockets). So it's entirely conceivable that the patent royalties IBM gets are merely a secondary concern to IBM. I'm not saying that this is the real reason, but merely that it's plausible. Nor does it justify that Forbes account of a shakedown attempt, if still used today (in all likelihood, it is, but let's using some more recent evidence, please - statute of limitations likely has run out on charges of Being An Asshole).

Re:Patents

[Max Littlemore (1001285)]

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies?

Yep.

That's why I buy Microsoft products. I'll support anyone who sticks it to the big, evil, nasty IBM.

Re:Patents

[QuantumRiff (120817)]

Dave, the CEO of NetApp had a very interesting blog posting about patents last summer [netapp.com]. Especially interesting since NetApp and Sun are now in a Patent lawsuit battle royale.

Re:Patents

[CodeBuster (516420)]

Only works for the big players, though. The little guys get screwed.

Patent Trolls are usually quite small and hire contingency fee law firms to litigate the case(s) on their behalf. This has a number of advantages as well as a few (relatively minor) disadvantages...(from TFA):

Advantage:

"Some believe patent trolls have an unfair advantage over manufacturers since they are relatively immune to the typical defensive tactic large entities use against small patent plaintiffs, because the cost of litigation tends to fall more heavily on an accused infringer than on a plaintiff with a contingency-fee lawyer, and because trolls have an almost-unrestricted ability to choose their preferred plaintiff-friendly forums, most prominently the Eastern District of Texas."

IANAL, but it seems to me that it should NOT be too difficult to structure the corporate ownership in such a way that any profits from successful litigation can be extracted as legal fees from the patent trolling shell company by the law firm(s) which service it (and probably own it indirectly as well) as a vehicle to pursue their litigation while shielding the parent law firm from more direct retaliation. In any case, you would be going after the patent troll and its lawyers on their home field (i.e. the legal system) where, unless you hired equally good attorneys, they would probably be at a very definite advantage.

Disadvantage(s):

"Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, patent owners' rights to bar infringers from manufacture, use, or sale of technologies that infringe their patents has recently been curtailed in the court decision eBay Inc. v. MercExchange, L.L.C.. Rather than automatically granting an injunction, the US Supreme Court stated that Courts must apply a standard reasonableness test to determine if an injunction is warranted. Writing in Forbes magazine about the impact of this case on patent trolls, writer Jessica Holzer concludes: "The high court's decision deals a blow to patent trolls, which are notorious for using the threat of permanent injunction to extort hefty fees in licensing negotiations as well as huge settlements from companies they have accused of infringing. Often, those settlements can be far greater than the value of the infringing technology: Recall the $612.5 million that Canada's Research in Motion forked over to patent-holding company NTP to avoid the shutting down of its popular BlackBerry service."

So, small players would be at a larger disadvantage if they actually produced something other than litigation, but as you can see the system strongly favors the patent trolls with very dubious if any benefits accruing to society from the whole affair. Even with the disadvantages, it pays to be a patent troll.

Re:Patents

[MrSteveSD (801820)]

We have the situation today where it's pretty much impossible to write a program without hitting loads of patents. If I was given the brief of writing a video player and I just did it in a way that seemed sensible, you can virtually guarantee that I would have infringed on dozens of patents. The only hope I would have of not getting sued is if the player was not at all popular or if patent holders felt it would generate bad publicity.

The word "VLC player" just popped into my head while I was writing this, and I did a search. As I predicted there are lots of patent threats against the player.

Re:Patents

[delt0r (999393)]

You will not infringe on dozens, you will infringe on *thousands*. I am doing just what you said, more or less. There are many many patents that are mathematically *identical*. Some even "patent" the mathematical process (lifting in this case) to derive *any* efficient implementation of DCT or similar.

Of course there are patents on sticks for dogs to fetch, how to swing in a swing and the use of a laser pointer to entertain cats (I think there a dozen of so of that one). Its quite clear that these patents won't stand up to a proper challenge and some of the video based patents have been ruled invalid when its gone to court.

But even if you win. Really the only winners are the lawyers....

Re:Patents

[melted (227442)]

IBM is the main reason why Microsoft started filing software patents. The story goes like this. Microsoft was blissfully unaware of the importance of software patents until one day Bill received a piece of mail from IBM lawyers telling him that Microsoft owes a rather large amount of money to IBM and there'd be consequences if they didn't pay up. They did pay that year, but they also mandated that each group files patents on anything significant they do. If they don't do anything significant, they file bullshit patents anyway, because there's a requirement to file and if they don't file enough their VP would be fucked. And VPs usually don't take buttsecks from the superiors lightly.

These days, by sheer numbers Microsoft is one of the biggest patent producing machines, able to go medieval on anyone who tries to enforce patents against it.

There's just one kink to this, as Eolas story amply demonstrated - if the plaintiff is just a hollow patent troll that does NOT infringe on anything Microsoft does and simply holds a patent to a core technology, he can get mega-millions by suing their ass.

I sometimes feel sorry for the RedHat brand

[pembo13 (770295)]

RedHat is essentially that son who does everything the family needs, but is rarely acknowledged because he isn't 'cool'.

More on topic, I hope this works out, if only so it would reduce their costs as I like their services.

Re:

[JeremyGNJ (1102465)]

And isnt that funny....the one true commercial success story for Linux...is shunned by it's own community.

Re:I sometimes feel sorry for the RedHat brand

[everphilski (877346)]

By the "vocal" community perhaps. Industry tends to use it pretty hardcore. I've been through three engineering (mechanical/aerospace) jobs in the last three years, and all three, when using Linux, used Red Hat.

So while people piss and moan on /. and other forums, and praise Ubuntu or whatever flavor of the month, real work does get done on Red Hat and similar distros. It's just that you wouldn't hear about it, unless you were really **doing** it.

Re:I sometimes feel sorry for the RedHat brand

[Znork (31774)]

is shunned by it's own community.

What part of which community?

As far as I can tell, Red Hat has a very good reputation and is widely appreciated. They hire a lot of important coders, they contribute much and they release most of their software under GPL. Sure you have the distro of the day crowd, but they'll always be installing new distributions.

Re:

[PCM2 (4486)]

As far as I can tell, Red Hat has a very good reputation and is widely appreciated.

I think part of the problem here is that when many vocal Slashdotters talk about Red Hat, they really mean either Fedora or CentOS. What engagement they have with Red Hat is limited to installation media, not the part of the company that really matters. That's my take, anyway.

I prefer Ubuntu as a desktop OS because ... I prefer it. Simple. If I were in charge of setting up a bunch of Linux servers for a midsized business,

Re:

[BlueParrot (965239)]

Eh? Red Hat is far from the only commercial success of Linux. Just have a look at Canonical and Ubuntu, they got Linux pre-installed on systems for consumer desktop use and they are making quite a bit of money from it.

Re:

[Medievalist (16032)]

Well, they've really stopped leading the pack.

Since Troan left, the fit'n'finish of their main offering has really slipped - what's the point of shipping a broken mkbootdisk? Sure, you can't fit Red Hat on a 1.44 MB floppy any more, but other distros simply hacked the script to make bootable USB sticks while RH was still shipping a unuseable utility. Or what about PAM support in usermod/useradd etc.? First Red Hat closes the bugzilla ticket (that has dozens of people on it) with the explanation "shadow u

Re:

[ushering05401 (1086795)]

I'm sorry, but what the hell are you talking about?

Re:

[cparker15 (779546)]

I had to look it up. They're characters from a show called "Arrested Development". It airs on Fox here in the States, so that explains why I've never heard of it.

Infinite goods.

[by Anonymous Coward]

It seems to me that the US in particular sees it's future income not to be based on selling physical goods but rather to be based on the sale of abstract knowledge. With that in mind the whole area of "intellectual property" and the motivations to protect it become in my own mind at least clearer. Information suffers from the attribute of infinite goods. I give it to you and at no cost you can undercut me and give it to millions of others without loss. That's the problem. It's hard to centralize profit when an idea can be replicated forever over the wires. On the flip-side, open-source in particular shows that instead of benefiting the top of the pyramid, wealth can be spread around much more evenly giving everyone the benefits and moving the area of competition to a different market. But this situation while good for the many does not currently lie within what the leaders of the United States of America see as in their strategic interest.

Re:

[Znork (31774)]

only the idea is valuable

Ideas are a dime a dozen; attaching monopoly rights to them simply makes the market less efficient and ends up with transaction costs that dwarf the inherent value of the improvement.

in cases where the patent is non-trivial

There are no non-trivial patents. All innovation is evolutionary steps from previous work. For anyone sufficiently skilled in the appropriate art, all solutions are obvious.

The only way you can delude yourself into being amazed at a new step is by not knowing the

BONK!

[by Anonymous Coward]

The article managed to spell "Red Hat" correctly almost 20 times, and the summary couldn't manage it once.

Kudos redhat, kudos.

[pwnies (1034518)]

This is a step in the right direction. Hopefully the US patent system realizes that it's messed up, and now that companies (especially ones that hold as many patents as red hat) are asking for limits on those (which would inevitably annul some of the ones redhat holds) it might be the push that's needed to spark reform.

The Right Thing That Won't Be Done

[amplt1337 (707922)]

FTA:
Today the patent system is, if anything, a hindrance to open source.

Sure. Absolutely. The patent system is so out of control that it is, if anything, a hindrance to start-ups, too.

In the words of Dick Cheney, "So?"

What it comes down to is which interest owns more Congressmen. (I'm aware that this is a brief in a court, but any sufficiently broad decision rejecting the idea of software patents would no doubt immediately come under legislative fire).

Also note that even if the scope of "what-is-patentable" is narrowed substantially, there's still hundreds of thousands of bogus software patents out there that aren't going to be deleted with the wave of a gavel, and that would most likely need to be litigated indvidually -- at substantial expense -- before they could be revoked, one-by-one. If they even can be revoked (I'd settle for being rendered officially unenforceable).

Re:

[Free_Meson (706323)]

What it comes down to is which interest owns more Congressmen. (I'm aware that this is a brief in a court, but any sufficiently broad decision rejecting the idea of software patents would no doubt immediately come under legislative fire).

Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business. A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production. A large company can lower its marginal cost of prod

Re:

[Medievalist (16032)]

Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business. A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production. A large company can lower its marginal cost of production/distribution/etc to below that of a startup or small business if not forced to license or work around whatever competitive advantage the startup/small business gained through their invention.

I suppose it might work that way if the large businesses weren't able to both write legislation and prevent fair enforcement of existing laws.

Re:

[amplt1337 (707922)]

A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production.

Assuming that the big business doesn't already hold a patent on something the small company needs, and form a patent consortium [wikipedia.org] with other large businesses to ensure no newcomers can get a toehold in the market.

Re:

[Waffle Iron (339739)]

Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business.

For the software industry, you have it exactly backwards.

The probability of building a non-trivial application that doesn't infringe on some existing patent is essentially zero. Large companies build patent portfolios and cross-license them with each other to build up an oligarchy of a few big players with a huge barrier around their market positions. They are all free to operate under this mutual patent umbrella.

These big guys can squash any small player that comes along with a new product that thre

Brief is now online.

[Ungrounded Lightning (62228)]

They have not uploaded their full brief yet online, but promise to post it soon.

TFA now has a link to a PDF of the brief [redhat.com].

This was necessary

[Apoorv Khatreja (1263418)]

With Ubuntu in the market, the big corporation have starting considering Linux as a threat. They're scared because it isn't a regular competitor; they can't buy it out. The GPL ensures this. So now they are trying to get involved and try to commercialize things. Recent developments such as -
http://linux.slashdot.org/article.pl?sid=08/04/08/202227 [slashdot.org]
http://linux.slashdot.org/article.pl?sid=08/03/31/1359204 [slashdot.org]
show what the commercial players are upto. In such a scenario, anybody would be scared, and hence seek legal protection.

And the history of Microsoft is in any case, enough for any company to be afraid of them.

All Large Companies Do It

[SwashbucklingCowboy (727629)]

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit.

You could remove "open source" from the sentence above and it would be just as accurate.

Re:

[Ungrounded Lightning (62228)]

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit.

You could remove "open source" from the sentence above and it would be just as accurate.

Too true.

Since "going over to the hard side of the force" a few years ago - from software to hardware design - I've cranked out six patents for our company. (And we have a bunch of other people cranking, too.) We did it primarily

Legislate from the Bench

[Archangel Michael (180766)]

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.

Software Patents are just about as silly as can be. If one thinks about it, anyone can use patents for PERSONAL or CORPORATE use, that patents should only apply to items being sold/marketed as a product or an improvement to an existing product for sale.

Lets just look at how this works, using some ancient tech, Stills. Lets say that I came up with a process or improvement that increases still production or the quality of the spirits being distilled. I can then market that improvement to all the other still makers, or start marketing stills that have that improvement built in.

However, if Joe Whitelighting makes his own stills, for his own use, and he happens upon building a still with said improvement, built by himself, then the person with the patent has no recourse.

The point of Patents is to get them into use as efficiently as possible. Not to horde patents to ideas and inventions that never get built.

In the case of software patents, Amazon isn't distributing, selling, or otherwise offering for license "OneClick". It is using this patent to keep others from using it, even if the others are building it (or something similar) themselves.

In this case the Patent is being used not to reward Amazon for something they are selling, but rather to punish anyone using a similar or related idea.

Re:

[Waffle Iron (339739)]

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.

As you may recall, the entire idea that software can even be patented in the US was originally legislated from the bench.

Not just harmful to "Open Source"

[Fede Heinz (634397)]

Kudos to Red Hat for this. However, arguing that software patents are harmful for open source falls short of the mark. In the end, they are harmful to everyone. In the best case, they raise the cost of software development for everyone, open source or otherwise, including anyone who does in-house software development. In the worst case, they make the development of certain programs impossible for anyone.

I think Bill Gates called it right years ago, when he wrote that patents would bring the industry to a

Re:

[Wordplay (54438)]

I think Red Hat is being prudent in picking a battle they can possibly win. It's easier to substantiate costs and difficulty within your own sub-industry.

Any solution that covers open source has a good chance of covering the rest of the industry too. It would at least set a great precedent.

~20 other amicus briefs

[harlows_monkeys (106428)]

I don't see Red Hat's brief listed, but here are links to most of the amicus briefs [patentlyo.com] filed in this case, along with a short summary of each.

Re:Honestly

[greenbird (859670)]

As much as I hate it, some great software has been developed under the patent system that otherwise might not have been made.

I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products.

Re:Honestly

[arotenbe (1203922)]

Name one category of software that would not have been developed without patents and name a few specific products.

Annoying interactive cartoon interfaces. Microsoft Bob. Clippit.

Oh, wait...

Re:

[i.r.id10t (595143)]

Various DRM implementations? Though that may be more copyright driven than patent driven...

Re:Honestly

[Ed Avis (5917)]

You might argue that Frauenhofer would not have done the R&D to develop the MP3 encoding without the expectation they could get software patents and charge people for them. Then again, other formats like Ogg Vorbis were developed freely (even if MP3 came first).

Even if such cases do exist, they are more than outweighed by the cases where innovation is blocked, not promoted, by patent minefields.

Re:

[Z34107 (925136)]

True - but MP3 did come first, and I'm willing to pay a premium to have technology advance faster.

Re:

[Znork (31774)]

I'm willing to pay a premium to have technology advance faster.

Sure. The thing is indications are that patents make technology advance slower instead. Monopolies do not tend to encourage efficiency; Microsoft with all its resources can barely keep pace with an underfinanced rag-tag bunch of geeks.

There are various other models for diverting funds to have technology advance faster without the damaging aspects of monopoly rights; they were never intended to accomplish faster technological advances, they were

Re:

[ceifeira (1230772)]

MP3 got developed when it did because scientific output on speech coding and psycho-acoustic models, using wavelet and cosine transforms (particularly the DCT), &c., reached critical mass at the time.

Re:Honestly

[garett_spencley (193892)]

"I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products."

PNG, Ogg Vorbis etc.

Re:

[Corpuscavernosa (996139)]

I said might not have been made and I was not necessarily arguing "for" the software patent system. I didn't say "would never have been made." I was merely speaking to the general principle that the patent system, screwed up as it is, can drive innovation to a point. For good or for bad. And that point was early in the history of software patents. I do believe that software patents are shit-useless and inhibit innovation now.

Forgive me for not being more thorough with my first post.

Re:

[Gat0r30y (957941)]

Link to the brief [redhat.com] It was at the bottom of the page.
As for my .02$ I think you should be able to patent compilers, anything else should fall under copyright.

Re:Honestly

[QuantumRiff (120817)]

As much as I hate it, some great software has been developed under the Copyright system that otherwise might not have been made. A solution? I don't have it.

Fixed that for you!

Re:

[Corpuscavernosa (996139)]

Haha yes that was fixed indeed! As far as copyright is concerned for software, there has to be some sort of a functional equivalency protection that Copyright doesn't protect. If you have some sort of technique for compliation or something and the code is copyrighted. If someone comes along and figures out how to do the same thing without exactly taking your code, they're free to do it. I think that's where the problem lies.

Re:

[Tim C (15259)]

for software, there has to be some sort of a functional equivalency protection that Copyright doesn't protect

But why does there? What exactly is the problem? If it's trivial, then you can't have put a lot of effort into developing it yourself so what investment are you trying to protect? If it's complex, then without access to the source (or similar clues) your competitors will likely have just as hard a time developing their version as you had developing yours, in which case what's the problem? You have th

Re:

[greensoap (566467)]

I just finished the brief. Of course this subject deserves more thorough explanation and analysis, but who has the time.

Red Hat is arguing that the Federal Circuit has failed to apply the standards set forth by the Supreme Court. Namely, they are arguing that software along does not fall within 35 USC Section 101 without some sort of physical transformation of something. See Diamond v. Diehr. The Fed. Cir. created a standard saying that software is patentable if it creates a "useful, concrete, and tangibl