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Patents Red Hat Software The Courts Linux

Red Hat's Secret Patent Deal 95

Posted by Soulskill
from the where-do-penguinburgers-come-from-anyway dept.
Bruce Perens writes "When patent troll Acacia sued Red Hat in 2007, it ended with a bang: Acacia's patents were invalidated by the court, and all software developers, open-source or not, had one less legal risk to cope with. So, why is the outcome of Red Hat's next tangle with Acacia being kept secret, and how is a Texas court helping to keep it that way? Could the outcome have placed Red Hat in violation of the open-source licenses on its own product?"
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Red Hat's Secret Patent Deal

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  • Dear Slashdot, (Score:5, Insightful)

    by Anonymous Coward on Friday November 12, 2010 @02:03PM (#34208824)

    Copying the first paragraph of TFA, verbatim, does not make a helpful summary.

  • I think maybe (parts of) the community might not want to know.

    You too, Brutus?

    • Re: (Score:3, Interesting)

      Quite right. The patent claims to own the concept of representing a database record with a class instance (object instance). The more interesting question is why Red Hat didn't challenge this patent based on originality or obviousness: I personally have prior art going back to the mid-90s, and I'm pretty sure that others right here on this site do as well; some may have prior art going back further.

      • by h4rr4r (612664)

        They might have, then the troll gave them a license for -$X, if they agree to shutup about it. This saves them a court battle and lets the troll go on to his next victim.

        • Not only are you 100% correct, but: in the US system, a settlement does not set legal precedent. Only actual judgements do. By settling with a secrecy agreement, the patent trolls do not set any precedents which might impair them in the future.

          • Which is exactly why it would have been in Red Hat's best interests as a database vendor to challenge the ruling.

            Again, I ask the question: why did Red Hat not do this? There is something more here that nobody is telling us.

      • Come to think of it, so long as you include non-SQL, non-DBMS databases, I personally have prior art going back to, um, 1989 I think.

      • Have you read the patent claims, interpreted in light of the description, to be sure your alleged prior art really is prior art?

        If there really was widespread prior art, I find it odd that prior to Red Hat, both IBM and Oracle licensed the patent (Oracle as part of a settlement after being sued, IBM without needing to be sued). It seems unlikely that companies with the legal resources of IBM and Oracle would fold against a patent that could easily be defeated.

        • Re: (Score:3, Insightful)

          by ghjm (8918)

          Also, "I have some code on my machine that I worked on in 1979" is never prior art because there is no proof you didn't write it yesterday and backdate it. It has to be published or findable in a library or otherwise dateable. It's sometimes pretty hard to find prior art even for obvious things, because people don't usually write and store documents on obvious things.

    • by icebike (68054) on Friday November 12, 2010 @04:08PM (#34210290)

      I think maybe (parts of) the community might not want to know.

      You too, Brutus?

      Exactly, and the Judge enforcing a huge NDA over the discussion has probably abrogated the rights of some third party to discover violations of their IP or leave them twisting in the wind waiting to be sued by patent trolls for an infringement that they are totally unaware of.

      Did Red Hat essentially win the case, but can't tell anyone so that the patent trolls can continue to collect royalties on invalid patents?

      Did Red Hat lose the case and thereby violate the GPL and be at risk of losing their entire business?

      Maybe we need Judicial Impact statements in this country. Especially when the subject at hand affects the rights of non participants.

  • Anybody getting the hint yet? Patents and copyrights are nothing but black holes, sucking in all human creativity.

  • East Texas and IP... (Score:5, Interesting)

    by cobrausn (1915176) on Friday November 12, 2010 @02:11PM (#34208924)
    My Operating Systems instructor (a die hard open source / linux guy) went to testify as an expert at a court case involving patent infringement with some pretty big names involved in this now famous East Texas District court. He was skeptical going out but came back with a different opinion; apparently that court district processes so many IP and software patent claims that the court district that they've become better at dealing with it than any other court. They process the claims faster and the judges are more knowledgeable on the subject than most and run a very tight ship. He said it's easy to see why they might have started those types of cases out there, but the reality now is far different than the picture painted.
    • by Nyder (754090)

      My Operating Systems instructor ....

      You have a what?

      Seriously, is that a title you can get?

  • Mr. Perens has no idea what the terms of the settlement are. No one does, other than the parties and the judge. I don't know what his animus is against Red Hat, but the way this article is written is simply FUD.

    • by countertrolling (1585477) on Friday November 12, 2010 @02:43PM (#34209302) Journal

      We shouldn't allow this kind of secrecy. If it takes FUD to pry open the case, then I'm all for it. Sometimes it takes a sledgehammer to "tear down that wall".

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        I agree. Secret agreements shouldn't be allowed ever. The only legitimate reason an agreement must be kept secret is to cover illegal activity, and that's stretching the meaning of legitimate, isn't it? For any contract to be enforceable (perhaps over some dollar amount or people involved?) it should have to be filed and on record, for anyone to find with a simple search. I say this a programmer who mostly works under contract with publicly held corporations. Maybe contracts under $10000 in value, or betwee

        • by Anthony Mouse (1927662) on Friday November 12, 2010 @03:24PM (#34209804)

          The only legitimate reason an agreement must be kept secret is to cover illegal activity

          No it isn't. It allows parties to negotiate a deal which is more favorable to one of them than the other usually gives to most people, without causing everyone who the second party negotiates with in the future to demand the same deal.

          • by jmcvetta (153563) on Friday November 12, 2010 @04:37PM (#34210600)

            The only legitimate reason an agreement must be kept secret is to cover illegal activity

            No it isn't. It allows parties to negotiate a deal which is more favorable to one of them than the other usually gives to most people, without causing everyone who the second party negotiates with in the future to demand the same deal.

            If we were talking about a business deal, this would be fine. Citizens have no right to a fair price. However, when we're talking about a "deal" to settle a lawsuit, it's a whole different game. Secret legal settlements are anathema to the basic principal of equal treatment before the law -- since the main purpose of secret settlements seems to be covering up gross inequalities in application of the law.

            • However, when we're talking about a "deal" to settle a lawsuit, it's a whole different game.

              The only reason to ever license a patent is to avoid a lawsuit by the patent holder. What difference does it make if the agreement is made before or after they file the lawsuit?

              • by jmcvetta (153563) on Sunday November 14, 2010 @12:54AM (#34219990)

                What difference does it make if the agreement is made before or after they file the lawsuit?

                Before a lawsuit is filed, we have two parties talking nicely trying to work out their differences. By filing suit, one of the parties is bringing the State into the dispute. They are asking that the State use force, or threat thereof, to resolve the dispute according to their wishes.

                This is a necessary and useful service, since not all disputes can be resolved amicably. However, the dispute is no longer a private matter between two parties - it has become a public matter. Citizens have a compelling interest in seeing that all operations of the State are conducted as transparently as possible. Allowing a public matter to be settled in secret is the very opposite of transparency.

            • Re: (Score:3, Insightful)

              by Jenming (37265)

              The most likely reason they settled is because the law was clear and both parties knew what would happen if they went to trial.
              The most likely reason they did not release the details is that releasing the details hinders the parties ability to deal with 3rd parties.
              The most likely reason everyone else gets upset about this is because they are the 3rd party and want whatever advantage the 2 settling parties are holding by keeping it secret.

              Its possible only one party benefits directly from the secret, but in

              • Re: (Score:3, Interesting)

                by jmcvetta (153563)

                The most likely reason they settled is because the law was clear and both parties knew what would happen if they went to trial.

                Probably true. That they settled, is not the issue. The secrecy of the settlement is.

                The most likely reason they did not release the details is that releasing the details hinders the parties ability to bilk 3rd parties.

                FTFY.

                The most likely reason everyone else gets upset about this is because they are the 3rd party and want whatever advantage the 2 settling parties are holding by keeping it secret.

                People are upset, because whatever benefit the parties may hold, comes at the cost of making the law more opaque and uneven in its application. The legal system is a public disgrace, and a millstone around the neck of the economy, when it conducts its business in secret in order to secure the private benefit of a lucky few.

                Its possible only one party benefits directly from the secret, but in that case they certainly paid the other party in the settlement agreement or it would not be secret.

                Yup, most likely someone somewhere got paid off.

    • Seriously, this is the best opinion piece on open source and patents that I've read in a long long time. And as the founder and former director of the NoSoftwarePatents [nosoftwarepatents.com] campaign and author of the FOSS Patents blog [blogspot.com], I read (and write) a lot about that subject.

      There's a precedent to this settlement in which Red Hat definitely paid royalties: when it settled the FireStar case. It published a misleading FAQ on its website trying desperately to divert attention from what really happened. The non-confidential par

      • by Byzantine (85549)

        All of which is—I'll be diplomatic and say interesting, I suppose, but nonetheless completely beside the point. The fact remains that, as I said, "Mr. Perens has no idea what the terms of the settlement are." Any speculation he makes is simply that. Perhaps he was basing that speculation on this FireStar case you mention (which I'm not familiar with), but it's impossible to say for sure since he doesn't mention it.

    • by dbIII (701233)
      He's certainly been very angry with them in many of his posts here but there may be a very good reason. Let's hear it Bruce.
  • What are the patent trolls going to do, exactly? Sue everyone who develops open source software? There is just not enough money to even justify that sort of action, and given the US government's interest in open source software, they would run the risk of getting software patents rendered invalid. If Red Hat is party to some sort of secret licensing deal, that is very unfortunate, but I really do not think that the patent trolls can actually destroy the entire movement.
  • sealed case (Score:5, Interesting)

    by Anon-Admin (443764) on Friday November 12, 2010 @02:27PM (#34209096) Homepage Journal

    IANAL, however it seems that changing the LGPL to specificly deny sealed cases involving patent infringement settlements with out notification of all developers, to be a prudent response. If there is a settlement involving an LGPL'ed software then all developers need to know so that the infringing code can be change, removed, amended, or licensed.

    When dealing with a commercial software house there is only one company that needs to license the code and only one set of developers who are aware of the licensing via the
    corporate structure. This paradigm is quite different in the opensource community, this is the equivalent of the company having a ruling/ agreement but being bard from informing the developer staff.

    • by PerfectionLost (1004287) <ben@noSPaM.perfectresolution.com> on Friday November 12, 2010 @03:03PM (#34209528)

      this is the equivalent of the company having a ruling/ agreement but being bard from informing the developer staff.

      LMFTFY.

      this is the equivalent of the company having a ruling/agreement against bards informing the developer staff.

      We need more bards in our development staff.

      • by Byzantine (85549) <carson@@@sdf...lonestar...org> on Friday November 12, 2010 @03:06PM (#34209560) Homepage Journal

        This might be more difficult than you think: can you think of a rhyme for "patent infringement"?

        • Anyone got a peanut?

        • by blair1q (305137)

          flatulent whingement

        • by gknoy (899301)

          No, but a skilled bard could find a way to phrase it well. :D

        • Patient orange mint?
        • by Qubit (100461)

          can you think of a rhyme for "patent infringement"?

          Oh hai, it's me right here, in your base, improper spellah,
          droppin'
          fools like db tables, vampire tap your cables (like a bella),
          'code 3 or 4 lines, you might get sued for Patent Infringement,
          Software Patents make no sense, just like Combatant Inpingement.

          • by Qubit (100461)

            Two more:

            They call me the Silk Badd Boyy of IP, sued daily for Patent Infringement,
            but I'm like "hey, Man, what's up with the Satin Perstringement?"

            In 59 states, all chomping at the bit,
            there are lawyers by the dozens, want to catch me in their mit,
            they say this musical maestro committed a sin of Patent Infringement,
            My Danzón beats are so off the hook, I'm called "The Latin Unhingement."

        • Re: (Score:3, Interesting)

          by Anonymous Coward

          lawsuit-contingent!

        • Re: (Score:3, Funny)

          by sumdumass (711423)

          Flattened impingement.

          There was an old lady that lived in a shoe,
          she used open source software but got sued.
          When she told the judge she couldn't afford the settlement for patent infringement,
          He said you have a house, your defense has a flattened impingement.
          She said take everything I own,
          it won't be enough,
          you can kiss my ass for the rest,
          if you don't like it, that's just tough.

      • by daremonai (859175)
        Excellent idea. We have just instituted a new requirement that all bug reports have to be in iambic pentameter. I expect code quality (KLOC divided by validated bug reports) should soar!
  • good grief (Score:2, Interesting)

    by nomadic (141991)
    It's being kept a secret because settlement agreements frequently are. Why on earth would a party agree to pay money (implicitly admitting wrongdoing) and NOT demand on a confidentiality clause? And Bruce, the "case" isn't being sealed, simply the terms of the agreement, and while a judge can enter an order prohibiting the parties from discussing the terms it's not typical. Usually the parties reach an agreement on their own and simply file a notice or motion that the case should be dismissed with prejud
  • by arivanov (12034) on Friday November 12, 2010 @02:48PM (#34209354) Homepage

    I have designed and implemented production systems using a direct SQL-field to accessor mapping and direct SQL-to-object mapping as far back as 2000. FFS at least 4 large-ish systems I have written for the last 10 years do that. It is a bleeding obvious approach and it should not be patentable in the first place. Anyone who knows _BOTH_ SQL and OO progamming and is using a dynamic language where you can generate database structures more or less on the fly like Perl would come up to this as an approach sooner or later.

    In fact I can think of a prior art here off the top of my head. RT uses at least some of these paradigms and some of its code dates back to 1996. Someone needs to ask Jesse when did he start using the automated mapping, but I suspect it is before the Acacia patent filing date.

  • Where's the beef? (Score:5, Interesting)

    by blair1q (305137) on Friday November 12, 2010 @02:53PM (#34209408) Journal

    Found it:

    “Once Red Hat settles and pays for a license for the patent, any subsequent defendant will find it more difficult to convince a court that the patent should not be enforceable.”

    In the limit as "more difficult" goes to "not".

    Since the case is sealed, subsequent courts will never know exactly what Red Hat copped to, or why. It could be anything, from a total capitulation on the merits to a conflict of the trial date with a lawyer's daughter's wedding. Neither is likely, but neither is impossible, and the unknowability moots this as a precedent. In any subsequent case, plaintiff (Acacia) will have to agree with the defendants (h4xx0rz X, Y, and Z) to stipulate that the Red Hat case can have no bearing, unless Acacia wants to violate the order and tell the judge why it should have bearing.

    And even if the settlement was unsealed, settlement precludes the case from being a precedent, so all Acacia could do, if anything, is repeat facts from it, not state that it is a legal validation of their patent.

  • by Grond (15515) on Friday November 12, 2010 @03:10PM (#34209606) Homepage

    The settlement did not necessarily include a license. It probably did, but it's possible it did not.

    Anyway, if the settlement agreement violates the LGPL then that will become apparent if Acacia sues another JBoss developer. In the event of such a suit it is likely that the terms of the settlement would be open to discovery. If the settlement doesn't contain a license, then no problem. If the settlement contains a broad license to all users and developers of JBoss, then the infringement suit will get tossed. If the settlement only offered a license to RedHat, in violation of the LGPL, then RedHat will suffer the consequences.

    And of course Perens invokes the non-existent threat of the Open Source Patent Apocalypse:

    Perhaps this will come as a wake-up call to an open-source community that has been historically complacent about the elephant in its living room: Patent holders can shut down open source at any time, simply by bringing claims against individual developers and small companies that can not afford to defend themselves.

    Except, of course, that patent holders have never actually done so (certainly not in any significant way), despite 15 years or more of opportunity. Litigation is expensive even if the other side doesn't defend itself, and organizations like the FSF, the EFF, law clinics, and individual charity-minded patent attorneys would likely defend individual developers or small companies for a reduced fee or no fee. If the defendants put up even a modest defense, the expense to the patent holder would almost certainly outweigh the remotest possible benefit.

    Perens brings up Jacobsen v. Katzer, but it's important to note that that it was the open source developer that sued for a declaration of patent invalidity as a (successful) way of getting leverage in the case. He was not sued for patent infringement, only copyright infringement. Not only that, the developer received a $100,000 settlement fee (net $68,357.62 after paying the defendant's attorney's fees because of a failed special motion to strike) and set some important precedents. Further, the other party was not a large corporation but an individual and the small company he owned. There was no particular need for legal aid in that case.

    There is just no point in trying to sue individual open source developers or companies that don't have significant assets. Patentees can't use the courts to eliminate infringing open source software. New developers will step in, hosting will move to another country, and the multi-million dollar game of whack-a-mole will continue, all the while generating enormous negative PR. Non-practicing entities, which some call patent trolls, are even less likely to sue individuals or small companies. They don't make money from litigation, they make money from licensing, and you can't squeeze blood from a turnip.

    So the patentees aren't going to get licensing fees from suing individual developers and small companies. What are they going to get? Customers to pay for their software instead of the open source version? I highly doubt that the open source community of developers and users would turn around and pay for software from the company that just sued them.

    Patent infringement suits may be a problem for larger companies like RedHat, but such companies have the means to defend themselves.

  • by Anonymous Coward on Friday November 12, 2010 @04:05PM (#34210254)

    IAAL (in fact, IAAPL, I Am A Patent Litigator).

    1) Bruce Perens knows nothing of the law. The case was not sealed. You know that because you can use PACER to go on the EDTX docket and look at the case (Civil Action No. 6:09-cv-00097-LED-JDL). If the case itself was sealed, you could not do that. Only really exceptional cases get sealed (i.e. national security cases, some mafia cases). Whether or not the case was sealed has nothing to do with whether the settlement will be publicly available. Nearly all patent cases end with a confidential settlement agreement. Generally, with limited exceptions (e.g. class action cases), there is no requirement to put a settlement of any civil case before the Court or to make it public. The parties simply file a stipulation to dismiss, as was done in this case. Furthermore, Mr. Perens confuses a protective order (which is often a permanant order by the Court not to disclose or use confidential material produced during discovery) with a confidential settlement agreement (which is a contract between the parties, typically enforced by a subsequent breach of contract lawsuit, rather than contempt).

    2) The LGPL provision at issue (presumably LGPL 2.1 Paragraph 11) is HORRIBLY DRAFTED. In fact, it is not clear what at all it is meant to do. What does it mean that a judgment or "allegation of patent infringement" "contradict[s] the conditions of this License"? Whether or not RedHat takes a license, a patentee could sue another JBoss user for infringement. Just because the patentee could not sue RedHat again or sue RedHat's paying customers again does not seem to necessarily contradict the conditions of the license. RedHat could not guarantee before or after that 3rd parties would not be sued by the patentee. RedHat is not the one that is impinging on the downstream use of the LGPLed software, the patentee is, so how could RedHat be in breach of the license? The whole section is non-nonsensically meaningless and demonstrate a complete misunderstanding of how patent litigation and licenses work. Sure, if a patent license required Redhat to not distribute the source code to LGPL licensed materials, that would be a clear breach. But that's not how the license works. The license simply would not guarantee that the patentee wouldn't sue individuals who then took that source code and sold a product based on it. No "contradict[ion]" because RedHat is doing nothing to impinge the downstream re-sellers (the patentee is) and the downstream re-sellers are in no worse condition than before the agreement that RedHat entered into.

    3) It does not appear from the JBoss documentation that JBoss mentions any particular version of the LGPL. Therefore, under the LGPL, you can choose any verison. LGPL v3 does not have the equivalent non-nonsensical provision.

    • by Byzantine (85549)

      Mod parent up.

    • Dear Mr. Anonymous Coward Legal Expert,

      It's a common attorney tactic to say what will win the argument - and sometimes the truth suffers.

      Whatever you call it, Red Hat has agreed to keep the settlement secret - and I discussed this with a really good attorney who had no problem with my referring to the settlement as sealed, and I discussed it with Red Hat. Their VP and General Counsel was in the loop - I wasn't supposed to know that, but he made a mistake with email.

      All Free Software licenses of that age a

      • by yuhong (1378501)

        Well, it is easy to verify whether the settlement is sealed or not. Someone who has access just have to look at the PACER info on the case.
        Anyway, did you complain about it to Red Hat too?

      • by dbIII (701233)

        Why should we trust the Anonymous Legal Expert?

        We shouldn't, but if we can go through the same steps they outline and get the result then we should trust that result.
        With respect Bruce, EVERYONE commenting on this article is anonymous apart from yourself, and we only know it's really you because you've used the account in your real name a few times before and wouldn't be stupid enough to give anyone else the password.

      • by Byzantine (85549)

        It's a common attorney tactic to say what will win the argument - and sometimes the truth suffers.

        This is more than a "common attorney tactic," Mr. Perens, it's their job—attorneys are professional arguers, after all. I will grant you that perhaps the truth does sometimes suffer, but—at least in theory—preventing that is the reason why both sides have attorneys.

        Whatever you call it, Red Hat has agreed to keep the settlement secret - and I discussed this with a really good attorney who had no problem with my referring to the settlement as sealed,

        Everyone agrees that the settlement was sealed, but that's not what you said. In the article, you explicitly say that the case is sealed. This is a fairly large difference. If the case were sealed, you wouldn't have anything

  • “Once Red Hat settles and pays for a license for the patent, any subsequent defendant will find it more difficult to convince a court that the patent should not be enforceable.”

    Not exactly. For the judge to consider the settlement, Acacia would first have to enter it in to evidence. If they tried to enter merely the fact of a settlement, the defendant would be entitled to the entire settlement agreement during discovery.

    And when the judge finds out that Red Hat licensed the patent for a dollar a

  • You're a respected commentator on Free Software and its complex legal environment, and I've always admired that. Your consistent reputation has tended to increase the credibility of your ideas, in my eyes and in the eyes of many others.

    But this article... in the interests of simple editorial transparency, you really should have predicated almost every assertion with "I have no factual insight into the specifics of the sealed settlement, but..."

    Maybe a little bit of journalistic investigation might have been

    • So, the problem here is that Red Hat is hiding something. The only way to get at it is to work it out logically. I have done so as far as I can. What you are asking me is to refrain from trying to work it out at all.

      If you read the article there are lots of "as far as I can tell" statements.

      I have investigated! I talked with a lot of folks, including Red Hat's VP and General Counsel and another attorney there, Brad Kuhn who drives prosecution of most GPL cases (and supports my effort), and some attorneys.

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