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]

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]

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

Re:Patents

[QuantumRiff]

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.

Brief is now online.

[Ungrounded Lightning]

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].

Re:Honestly

[garett_spencley]

"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:Honestly

[Corpuscavernosa]

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:Honestly

[greensoap]

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 tangible" result. See State Street and AT&T. The Fed. Cir. then went on to say that a numerical result is a tangible result, Red Hat says that this is incorrect based on a Supreme Court case called Benson.

Red Hat is saying the Fed. Cir. has been improperly applying Supreme Court case law. Furthermore, they are making that argument to the Fed. Cir. The Fed. Cir. did ask for the argument, so the court might be receptive. However, most courts do not overturn themselves but instead find a way to set new precedent without overturning prior case law. Should we really expect the Fed. Cir. to overturn their own decisions from State Street and AT&T?

What Red Hat is not arguing, is whether software that controls a physical process that creates a transformation in a physical thing may properly be part of a patent. That was established by the Supreme Court in Diamond v. Diehr.

Re:I sometimes feel sorry for the RedHat brand

[cparker15]

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.

~20 other amicus briefs

[harlows_monkeys]

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

[Anonymous Coward]

Shouldn't you have been modded funny instead? I'm assuming your trying to get at that those two were open formats created specifically to bypass the patent issues with GIF & Mp3.

Re:Honestly

[Tim C]

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 the lead time to (try to) recoup your investment plus profit, become the recognised (and thus hopefully entrenched) provider of the software, etc.

Software really isn't like mechanical/physical inventions. For them, the item *is* the source, you can't sell one without the other, and hence patents are (arguably) required.