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Red Hat Software Businesses Patents Software Linux

Red Hat Seeks Limits on Software Patents 107

Posted by Zonk
from the putting-a-fedora-on-top dept.
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.'"
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Red Hat Seeks Limits on Software Patents

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  • by pembo13 (770295) on Wednesday April 09, 2008 @03:23PM (#23016122) Homepage

    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.

  • by JeremyGNJ (1102465) on Wednesday April 09, 2008 @03:24PM (#23016150)
    And isnt that funny....the one true commercial success story for Linux...is shunned by it's own community.
  • Infinite goods. (Score:3, Insightful)

    by Anonymous Coward on Wednesday April 09, 2008 @03:25PM (#23016154)
    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.
  • by everphilski (877346) on Wednesday April 09, 2008 @03:29PM (#23016208) Journal
    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:Honestly (Score:5, Insightful)

    by greenbird (859670) * on Wednesday April 09, 2008 @03:30PM (#23016220)

    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 (Score:5, Insightful)

    by Ed Avis (5917) <ed@membled.com> on Wednesday April 09, 2008 @03:47PM (#23016378) Homepage
    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:Honestly (Score:5, Insightful)

    by QuantumRiff (120817) on Wednesday April 09, 2008 @03:51PM (#23016432)
    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!
  • This was necessary (Score:3, Insightful)

    by Apoorv Khatreja (1263418) on Wednesday April 09, 2008 @03:52PM (#23016446) Homepage
    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.
  • by SwashbucklingCowboy (727629) on Wednesday April 09, 2008 @03:53PM (#23016456)

    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.

  • by Archangel Michael (180766) on Wednesday April 09, 2008 @04:04PM (#23016598) Journal
    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.
  • by amplt1337 (707922) on Wednesday April 09, 2008 @04:07PM (#23016628) Journal

    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:Patents (Score:4, Insightful)

    by CodeBuster (516420) on Wednesday April 09, 2008 @04:12PM (#23016698)

    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 (Score:4, Insightful)

    by Tanktalus (794810) on Wednesday April 09, 2008 @04:13PM (#23016716) Journal

    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:Honestly (Score:3, Insightful)

    by ceifeira (1230772) on Wednesday April 09, 2008 @04:17PM (#23016766)
    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.
  • by Znork (31774) on Wednesday April 09, 2008 @04:17PM (#23016772)
    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.
  • by Waffle Iron (339739) on Wednesday April 09, 2008 @04:25PM (#23016888)

    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 threatens their established market position. If a small player that actually produces products were to assert a patent against one of the oligarchy members, it will most get countersued for patents in the big guy's portfolio. The party with the most lawyers and financial resources will be the one most likely to prevail. (The only small guys who do not run this risk are the ones that don't actually produce anything to be countersued over, i.e., the patent trolls.)

    In the software industry, patents are nothing more than an unpredictable minefield that can pop up anywhere to threaten any small company's survival, and patent trolls can pop up do do significant financial damage even to large companies. Software patents negative economic effects outweigh any benefits they provide.

  • by Waffle Iron (339739) on Wednesday April 09, 2008 @04:32PM (#23016982)

    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.

  • Re:Honestly (Score:3, Insightful)

    by Znork (31774) on Wednesday April 09, 2008 @04:39PM (#23017068)
    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 originally intended as a way to enrich the friends of the crown at the expense of the populace. As such, they are serving their original purpose well.
  • by Fede Heinz (634397) on Wednesday April 09, 2008 @04:45PM (#23017156) Homepage

    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 stillstand, but I don't agree with his "solution" to acquire as many patents as possible: doing so only buys the patent holders a bit of additional time, i.e. they will be amongst last to be paralyzed by them (which of course is not without merit). But the patent creep will eventually catch up with everyone, leaving us with a software industry that can't do anything useful without paying toll to the patent trolls who won't do anything.

  • by Wordplay (54438) <geo@snarksoft.com> on Wednesday April 09, 2008 @04:53PM (#23017260)
    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.
  • Re:Infinite goods. (Score:2, Insightful)

    by gnupun (752725) on Wednesday April 09, 2008 @04:56PM (#23017296)

    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.
    O'Really? Maybe you have a dozen ideas on how to speed up programs on multi-core systems better than what is available today, then. You could make a few billion if you did.

    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.
    All solutions are obvious once you understand them, but you would not have come up with the idea yourself without the (valid/non-obvious) patent. Patents are instructions for someone skilled in the trade to recreate the product.
  • Re:Patents (Score:5, Insightful)

    by MrSteveSD (801820) on Wednesday April 09, 2008 @05:29PM (#23017686)
    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 (Score:5, Insightful)

    by delt0r (999393) on Thursday April 10, 2008 @06:50AM (#23022438)
    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....

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