Standing up to a patent bully | Opensource.com

Standing up to a patent bully

Posted 11 May 2010 by 

Rob Tiller (Red Hat)
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Red Hat and Novell stood up to a patent bully and got a favorable jury verdict in the IPI trial which invalidated some software patents that should never have been issued. It's hard to see how that's not a good thing for open source. It's also good that the particular battle has inspired discussion of the need for fundamental reform of the U.S. patent system. Red Hat has vigorously advocated such reform, and has taken strong positions on software patentability before the U.S. Supreme Court in the Bilski case and the European Patent Office.

But for the time being, the system is what it is. “Non-practicing entities” like Acacia which specialize in exploiting the system are permitted to bring lawsuits, and one way or another the targets need to address those suits. Most of the time, targeted companies settle. That's understandable in some cases, but in the IPI case the intransigence of Acacia meant that Red Hat and Novell had no choice but to fight. So we did.

Now that the smoke from the battle is clearing, it's fair to say there were several important efforts that led to victory.  I'd like to single out one for special mention:  the contributions of Michael Tiemann, Red Hat's vice president of open source affairs. In his time on the stand, he managed to introduce open source software to a jury in terms that were both clear and engaging, and conveyed his pride in open source in terms that were to me genuinely inspiring. Here's are a couple of excerpts from Michael's direct testimony (with able questioning from our lead trial counsel, Josh Krevitt of Gibson, Dunn & Crutcher) introducing some key ideas of open source.  

Volume I, Page 130 - 131

 Q. Okay. And so -- and I think you said it's like a recipe, and that's because this tells a programmer --

A. Right. Going back to what is the function of software, the goal of the software is to basically give instruction to the computer what the computer should be doing. And it is like a recipe. A recipe will tell you here are the ingredients; here are the ways that you combine these ingredients to get something. And depending on how much flour, how much sugar, or how much egg you put in, you might get a cake or you might get a cookie or you might get a biscuit. And so a computer software program is saying take this data, combine it these ways, and out comes your result. So that is how software is like a recipe for a computer. And open source is like a recipe that you can share with your friends, and they can say, you know, I know how to make this better. Let's use butter instead of oil, and now we have a new kind of biscuit.

 Q. And an analogy that was used earlier -- I don't remember by whom -- what we all think of when we think of something secretive is the formula to Coke. And so is the idea that we can all drink a Coke and enjoy a Coke and we can buy a Coke, but we don't know how a Coke is made.

 A. No, no. And that's the example of proprietary software. People who write proprietary software will often say you don't need to see the source; you don't need this; all you need is the product. But those of us in the open-source community believe that we can make a better product every day by always having the freedom to make improvements and get ideas from our neighbors or share ideas with our neighbors.

Volume I, Page 133–35

 A. One way of seeing it is, you know, as a user, when you acquire open-source software, either by downloading it or by having it come as a product, you get the freedoms to read it, modify it, redistribute it. And that's what open source looks like to a user. It looks like a car you can go and buy which comes with a service manual, and you have the freedom to take it apart in your garage, if you want to.

And in the case of proprietary software, what you see is a product, which is defined by a single company and they decided what features it has. They decide what -- they decide when to ship new versions. And they also decide when to take it out of production and force you to buy a new version. So from the user perspective, that's the difference. But there's another difference.

Q. And what is that difference?

A. And that difference is from the developer's perspective, a developer who -- in the case of proprietary software, it's typically developed by a small number of people working in secret on the program. And they -- the total number of people who are working on that is necessarily limited by the total number of people within that company.

By contrast, in the world of open source, the entire world, or at least all those who are connected to the internet, can potentially be developers. And that was one of the things that really sparked my imagination about open source.

I've been teased by my counsel about being a smart kid, but in 1987, I knew immediately I was not the smartest kid in the whole world. And so one of the exciting things about open source was I always had a chance to work with people smarter than me. And when I talk with open-source developers, every single one of them has the experience that there is somebody smarter than them teaching them something. So we have a motto in the world of open source, which is nobody is as smart as everybody. That's been my experience, and that's been the experience of all the people I've worked with in open source.

The price a witness pays for direct examination is cross-examination, where the opposing attorney tries to extract concessions or discredit the witness.  It can be a time of high drama.  The cross-examining attorney has the element of surprise and the privilege to attack, and the witness must think fast.  In our case, Michael was cross-examined by Mr. Wesley Hill, an experienced attorney whose apparent objective was to discredit  open source.  He did not succeed.  Here are three of my favorite parts of the cross-examination, including at the end Michael's deadpan on the relevance of Karl Marx:

Volume II, Page 39

Q. Now, let's get back to our discussion of these patent rights versus the open-source community. Now, I described one scenario, which is I come up with something. I want to be -- follow the American dream and make a success, be a success, hopefully achieve financial success based on my work and my property, and so I seek patent protection. And if I get it, I can then sell my idea to those who wish to use it, and I can profit from my innovation, correct?

A. My father taught me that you cannot patent an idea. A patent is very, very specific about what it can contain, and my understanding is that you sell a license to practice the inventions disclosed. But the idea of patenting ideas was something which as soon as he told me about patents, he said, you cannot patent an idea.

Q. Well, I apologize if I used loose language.

 Volume II, Pages 49 – 50

Q. Do you really think you have to be able to take other people's protected property to be able to innovate?

 A. It has nothing to do with taking anybody's property.

MR. KREVITT: Your Honor, I object. The question wasn't designed --

THE COURT: He can -- Mr. Tiemann can continue to respond to the questions.

A. This is not a question of taking. This is a question of how companies are able to spend their resources in their plans to innovate. And when our people have to spend years of effort trying to demonstrate that a baseless allegation is false, then that takes away from our ability to innovate, and it puts us in a courtroom and just forces us to litigate.

To me, that is not an efficient use of our development resources or our financial resources. And we would not have that problem if people would give to us the same promise we give to them, which is full freedom to practice our patents under open source.

Volume II, Page 54

Q. And to enhance your business model, you want to see less property in this world so that you can profit off of selling services surrounding what used to be others' private property; isn't that correct?

 A. It's a balance and a trade-off. It's a balance and a trade-off that some models work better than others; some models work better at a given time than others. And we have seen how much good can be done when people work together, and we believe that that is the best way to build technology, which is why we've chosen that as opposed to the proprietary model of what Microsoft practices or opposed to the practices of IPI. We've chosen our best guess about how to make money and hire more people to do more work.

 Q. So it's a given to your ability, taken to your need-type paradigm you're pursuing?

 A. No. I think it's more the American way.

 Q. Because you know who said given to your ability, taken to your need, don't you?

A. That was Jefferson?

 Q. That was Karl Marx.

 A. Oh, okay.

 Q. Let's talk about something else.

 A. All right.

More of Michael Tiemann's testimony is attached.

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31 Comments

dragonbite
Open Source Evangelist

Sounds like he handled himself remarkably! Kudos, because I know I wouldn't have been so prepared or cool under fire!

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gdk
Open Minded

"Mister Tiemann, are you now, or have you ever been, a member of the Communist party?" Classic. You'd think we'd be done with that nonsense by now.

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dragonbite
Open Source Evangelist

It means they haven't thought of anything new yet, so they have to go with a stand-by.

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tcolindodd
Open Source Champion

...would have said Benjamin Franklin.

I always Poor Richard's Almanac and the Communist Manifesto all mixed up.

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Bruce Perens

While Red Hat has successfully defended itself, this effort is mostly neutral for the Free Software / Open Source community. The real concern for that community is not the plight of Red Hat, which will always be wealthy enough to defend itself, but that of the individual Open Source projects, including such modest efforts as the Java Model Railroad Interface project.

The key developer of that project, Bob Jacobsen, went through five years of hardship. He's a nuclear scientist by day, and he was almost fired from his job at Lawrence Berkeley Lab due to efforts of the patent holder - being dismissed from there for cause would probably have ended his career, as other labs would have been wary of picking him up, and of course there are very few such positions globally. He spent more than a full year's income to defend himself and his project, and was not fully compensated by the eventual settlement in the case. Red Hat and other Linux distributions, and even SFLC were notably absent from the case, only filing comments in an appeal proceeding after an extremely bad ruling had already come down from the court.

Red Hat profits from the efforts of people like Jacobsen who make applications and systems software that runs with, or is included in, their distribution.

If Red Hat really wanted to solve the software patent problem, not just for themselves but for all Open Source and Free Software developers, they would participate in an effort to gain patent reform legislation.

And yet, except for a few speeches from time to time, Red Hat has not participated in any concrete effort to eliminate software patents through legislative reform.

We can hope that the supreme court gives us a gift in the form of a Bilski case ruling, but I fear that congress would erase any such change within weeks, because we've not prepared them with arguments against software patenting, which IMO we should have been doing for years.

Often when I've spoken in government forums against software patenting, one of Red Hat's competitors is there to speak in favor of software patents. Red Hat isn't there to offset them.

Guys, before you crow too much about how much you've done to beat one little patent holder, maybe you should try to do what's necessary to make it sincere. Work to solve the real problem.

Bruce Perens

P.S. Thanks a whole lot, Red Hat, for removing my login after my last comment.

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tcolindodd
Open Source Champion

Is there any kind of defense fund set up for him? I would contribute.

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Bruce Perens

Red Hat and some other distributions are said to have a defense fund for use by developers directly. But the numbers I've seen would only defend two cases, and as far as I can see the fund has not been disbursed for any existing cases like Jacobsen v. Katzer. In that case, the Open Source developer preemptively sued the patent holder rather than wait to be sued on the patent holder's own terms.

And then there's a patent pool that was touted a lotsome years ago but hasn't come to much, called Open Invention Network. The members are several big patent holders along with Red Hat and Novell. For a while the number of patents held fluctuated (including decreasing when a member withdrew) which wasn't good news. I find it difficult to see an organization of this type set up by some of the world's biggest patent holders as being helpful - IMO they are there more to protect the institution of software patenting from us than vice versa, by giving us a reason (albeit false) to feel the problem is being addressed.

I think a credible anti-software-patent lobby is more needed than either of these efforts.

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Bruce Perens

I didn't answer your question, did I? Jacobsen won, so you don't need to give him money now. Sorry :-)

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Matěj Cepl

No, Jacobsen won, but he is heavily in debt, because he had to spent a lot of his personal money on the litigation. Listen to his story on http://twit.tv/floss117 and http://jmri.org/k/donations.shtml for donations.

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Bruce Perens

Oops, I didn't realize that Bob was still collecting. I made a donation just now, and of course my work on the case was pro-bono as well.

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Seth Vidal

Post removed at poster's request due to misunderstanding about the Terms of Service

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Seth Vidal

Post removed at poster's request due to misunderstanding about the Terms of Service

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Bruce Perens

Katzer attacked Jacobsen in various ways, including filing a FOIA with the U.S. Department of Energy claiming that the Lawrence Berkeley Lab was supporting in the JMRI project. Now, while this sounds absurd it was taken seriously by the government and the lab, and caused Bob no end of pain, and it took a long time for Bob to resolve it with his employer before his job was out of danger.

Katzer also sent bills to Jacobsen for hundreds of thousands of dollars, and filed C&Ds, and otherwise harassed him for years.

After Bob brought his case against Katzer, he found that Katzer's own product included the Open Source software, and ammended his case. This is what allowed Bob to win the case.

Katzer and his attorney have done something very dirty, and successful, with their patents. They filed multiple very similar patents - indeed two that are identical and one of those shouldn't have been granted. When pressed to defend the patent that they C&D'd Jacobsen for, they instead disclaimed the patent in question. But because they have several very similar patents, this meant that they could bring another case against Jacobsen after wasting his money this time, and Jacobsen would eventually be too broke to defend himself.

Katzer's plan was never to win in court, but to drive Jacobsen to the poorhouse. And that's the typical strategy of a large patent aggressor against an individual. Open Source developers are toast against that sort of attack. Only the copyright case saved Jacobsen.

In the final settlement, Katzer is enjoined from bringing action against both the developer and his project in the future. We could not have done that with the patent case alone - it was only after we got summary judgement against Katzer that he and his attorney were willing to settle.

Now, I've participated in other cases like this, but I can't talk about them because they settled under seal. If the precedent can't be used again, Open Source has lost. Jacobsen actually accepted a smaller settlement because he insisted on having the entire case record be open rather than sealed.

I've written two articles about the case on Datamation, you can read them in sequence to get some more background, and many of the court papers are on the JMRI site.

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admin
Open Source Champion

"P.S. Thanks a whole lot, Red Hat, for removing my login after my last comment."

Hi Bruce,
To our knowledge, we have not removed any user accounts. Your comments are still posted on the previous blog post. If you have any problems with your user account, please use our contact form to let us know.

There are two ways to leave comments: creating a user account or using OpenID. If OpenID was used, a user account is not created.

Let us know if we can help. We appreciate your comments.

opensource.com Admins

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Bruce Perens

Password recovery using my email address said there was no such address in the system. And yet a week ago the system sent a reply to that address, so it _was_ there on 5/6. And I just registered a new account today using that address.

Either someone got annoyed and deleted it, or there was a software hiccup.

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Rahul Sundaram

Hmmm. It would be better to assume that it is a account malfunction than assume ill will and claim that Red Hat deliberately deleted your account and that too in response your last comment.

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admin
Open Source Champion

It looks like the comments posted last week were done via an account that was not verified (according to our admin tool). This usually means that it was done using the anonymous comment form which, like the OpenID option, doesn't create a user account. It does, however, let users participate who do not want to create an account.

The form maintained your email address which is why you were able to make multiple comments on the thread and get email follow-ups.

It looks like you're a registered user now. We apologize for any confusion about this. Again, thank you for your thoughts on our topics.

opensource.com Admins

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FeedbackGuy

You should read the case. Jacobsen admitted to infringement of the ‘329 patent in the court docs. Katzer disclaim the ‘329 patent prior to the answer (suspect to save money since Jacobsen had a free attorney)

I think that this case has hurt the open source industry rather than help it. I suspect that we will never know why the case escalated the way it did. If the two people knew each other the litigation would have never happen.

Jacobsen copyright was reduced down to a collection of things (nothing to do with code). Just a bunch of text files. Really sad when you think about it.

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Bruce Perens

All right. Mea culpa then.

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Tilman Baumann

So, was this case won by convincing hat judge and jury that opensource is better or because the patent was BS?

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gus3

Yes.

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Andrew Dinn

What is this man talking about? He appears to be referring to Marx's line "From each according to his ability, to each according to his need". There is no mention there of 'taking'. It's actually a summary of Marx's belief that the abundance which it is possible to achieve by pooling our best efforts should be able to provide for all our needs, as plural and various as they are. If anything it's about the potential for all of us to gain from 'sharing'.

Cynics may deride that belief and cling to their property and properietary rights out of fear, mistrust or whatever other motive but that is by the by. Whatever your view of Marx's beliefs to present this mangled rendering as representing what Marx or Michael said is either crass or, what I believe is more likely, crudely manipulative. If this mis-targeted slur is the best he could do to discredit Michael's reasoned, balanced presentation of the benefits which accrue from open communities no wonder he lost.

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Witness to the event

The actual statement in courtroom mirrored Marx's line. The transcriptionist mis-typed the actual testimony.

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Robert1260

I think you misunderstand Marx. He openly advocated taking by force from those of ability. There was nothing noble about his philosopy, Communism /Socialism (unless you consider the death by starvation of millions of people noble). It is a miserable failure at best, and evil at worst.
You only have to look at the collapse of the USSR to realize that-the Russians do (which by the way switched from a progressive, punishing tax system to a Flat Tax and enjoys higher tax revenues as a result). Two of the largest economies in the world-China and India, are becoming so because they have been moving away from Socialism and towards Free Market Capitalism. Greece is the latest example of Socialist failure.
The model that does work is based on individual rights, such as the right to pursue happiness (self-interest), the right to think your own thoughts, the right to use your thoughts to create items (such as software) to earn and own property, and the right to trade property that you own for property that someone else owns. This model is also based on individual effort, being responsible for yourself, instead of begging or forcing others to be responsible for you. Obviously, it is often in the individuals self-interest to team up or deal with others of equal or greater talent, and trade value for value.
Of course, when kids grow up, move out of mommy and daddy's house, and have to pay their own bills, they'll be wanting to get paid for any software development they do. That is honorable and improves their life, and the lives of those with whom they do honest business with.
Still, if anyone wants to give away the fruit of thier hard work, by all means they can do so. If working for free fills anyone with joy, by all means they should do so. It is their right to do so. But it is not their right to force others to work for free or for their self-interest.
I am neither for nor against opensource or proprietary software. I am for using what works to fulfill a purpose. When my company uses opensource, we pay. We wouldn't have it any other way.

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Natanael

NOTE: I am NOT engaged in or interested in politics or these kind of things, I just thinks that right should be right, and that lies and intentional misinterpretations should be corrected.

---

"While he allowed for the possibility of peaceful transition in some countries with strong democratic institutional structures (such as Britain, the US and the Netherlands), he suggested that in other countries with strong centralized state-oriented traditions, like France and Germany, the "lever of our revolution must be force.""

http://en.wikipedia.org/wiki/Marx

(If you have read about what several USA militaries and politicians want to do with Assange, the Wikileaks guy, you'd see why this is a stupid argument. Marx wanted the people as whole to take back their freedoms from the corporations, etc. The people against Assange essentially want to enforce their New World Order where they are in charge, no questions asked.)

The purpose was not to remove rights or things, it was to make sure that everybody had the same rights and freedom, to give things back to the people.

Bad/malicious interpretations and failed implemenations can not be blaimed on him.

You should also be aware that the crash in the russian economy in the 90's were caused by american "disaster capitalists".

The two countries you mention, China and India, never implemented socialism other then on paper.

http://www.philip-atticus.com/2010/02/asking-right-questions-about-greek...
I can't see where socialism would be relevant.

---

Yup, freedom to choose is great. I'm not going to force people to stop using Windows or to share their source code, but I'm going to share my code because I want to.

---

Just so you know, I'm no socialist, communist or any other kind of "enemy of the USA". I just want people to be honest.
I would correct anybody even if they stated false things that would be positive to me, and I have actually done so before.
Even if I would benefit from it, I don't like lies or misunderstandings.

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apexwm

I commend Red Hat's stance. Of course they are taking this stance because it will help them grow, but it is the right thing for all of the consumers. It's time that we end the patent wars going on. It's costing companies dollars, time, and making software with less quality for end users. Open source paves the way for innovation, cooperation, and overall quality software.

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mmahut
Open Source Evangelist

I'm very proud to be part of Open Source community and have the chance to work with such smart people like Mike Tiemann and others.

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Andrew Morris

By what right does the patent office grant a patent over software?

As a programmer, it offends me that someone would patent such things as one-click ordering. This is an obvious process that most programmers can implement themselves without any reference to someone else's work. In fact it's pretty trivial. Does that mean we are also not allowed to change our own tyres, iron clothes etc if someone were to patent these?

These specious patents are an affrontry to everyone's right to think for themselves. They are being used to stifle and frustrate innovation rather than protect it.

I really think the courts and legislators should be dealing with corrupt behaviour of the individuals and organisations granting such patents.

Or do we race to the bottom and see who can be first to patent breathing?
Actually, that might be difficult - it's probably already the IP of someone with a DNA sequence patent they don't yet understand.

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Vladimir (Volodymyr) Druzhshchienschkyy

I had stumbled across this thread quite by accident. Fascinating commentary and exposition. I would have never seen this calibre of discourse on other commercial sites, and come to think of it I have not seen this level on certain legal sites that are suppose to be covering these topics in-depth.

This site is a surprize. Kudos to all authors, commentors, and participants.

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Volker Hoert

The idea of from each according to ability, to each according to need comes from Luke the Evangelist, author of one of the four gospels in the New Testament in the bible, as well as the author of Acts of the Apostles. The concept of each according to need is reiterated more than once as the model Jesus's apostles lived by in the Acts. Also mentioned is how each acted according to their ability to help the people of Judea. It is the basis of how the apostles acted, which is the model for how the Christian community and communion should be.

These ideas came out of socialist-tinged Christian movements into the Christian-tinged early socialist movement, which is where Marx got the idea from.

So next time a lawyer asks whose idea this was, tell them it came from the Bible!

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Robert1260

Thank you for your isightful response. As an objectivist, I tell conservatives all the time that Christianity itself is very socialist. I myself am not a Christian, nor a member of any religion. The problem is the philosophy of altruism, which seeks to sacrifice the individual's pursuit of happiness (self-interest) for the good of the collective. Of course, under this philosophy, most expect the sacrificing to come from someone else (I need, you have, give it to me). At some point, you either have to be forced to sacrifice by a third party (such as a government), or you are made to feel guilty/ashamed/fearful (such as a religion which says you will burn in hell because of your refusal to self-sacrifice). In objectivism (the basis for true capitalism) you pursue your self-interest by trading value for value (such as selling some software which you developed to those who find it useful at a price which is mutually acceptable and beneficial) in an honest fashion. If at any time an individual lies, cheats, or steals in order to profit, he/she is not practicing capitalism or sefl-interest. I don't think anyone considers going to jail to be in their self-interest.
I apologize for the long post, but your excellent response actually inspired me to do so.

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

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