Total victory for open source software in a patent lawsuit

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A figure from a patent application

The jury verdict last Friday in favor of Red Hat and Novell in a case based on bad software patents owned by "non-practicing entities" is an important victory for the open source community.  Those in the business of acquiring bad software patents to coerce payments or bring lawsuits should be worried.  Two such businesses were plaintiffs in our case, and they did their best to confuse the jury in one of their favorite locales, eastern Texas.  But it didn't work. The jury unanimously found that the patents were not infringed, and, even worse for the plaintiffs, that the patents were invalid.

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The case was about allegations by IP Innovation, L.L.C. (a subsidiary of Acacia Technologies), along with Technology Licensing Corporation that Red Hat and Novell infringed four claims from U.S. Patents 5,072,412, 5,394,521, and 5,533,183. The patents share a common disclosure and are all titled “User interface with multiple workspaces for sharing display system objects.” The patents relate to a computer-implemented system and method for providing a graphical user interface with multiple workspaces. 

Like most patent cases, this one involved technical subject matter and terminology. However, the plaintiffs came forward with minimal evidence to support their argument of infringement. They also faced abundant evidence showing that the patents were invalid based on prior art. In other words, there was nothing new in these “inventions” sufficient for a patent.

In these circumstances, you might suppose that a rational patent plaintiff would dismiss the case, perhaps in return for a token payment. Instead, the plaintiffs decided to ask the jury for millions of dollars. Their theory appeared to be that the jury might be confused by the technical terms and unsympathetic to out-of-state businesses with creative business models.

With that end apparently in view, the plaintiffs' counsel launched an attack on the theory and practice of open source software. It was clear during jury selection that our jurors had no prior knowledge of, or experience with, open source. Plaintiffs attempted to exploit this inexperience by arguing that open source software involved behavior that was, if not downright illegal, at least ethically dubious. They promoted the fallacy that open source distributors unfairly take the property of others and thereby unfairly profit. They also suggested that Red Hat's public criticisms of the U.S. patent system as it relates to software and related calls for legal reform were un-American and indicated a secret fondness for the writings of Karl Marx. I kid you not! As absurd as this argument sounds, after many hours of sitting on a hard courtroom bench, I briefly wondered whether the jury might fall for this version of the classic FUD strategy and be so fearful and confused as to find for the plaintiffs.

It turned out that there was no cause for concern. Michael Tiemann, Red Hat's vice president of open source affairs, explained the fundamentals of open source so as to make them clear, and even inspiring. He explained that open source software is about voluntary collaboration, not involuntary expropriation. He also made plain that Red Hat's legitimate criticisms of the existing patent system in no way shows a proclivity to infringe patents or indifference to patent claims, and that Red Hat respects and abides by the law.

Our side took the opposite approach from the plaintiffs, basing our case on facts and evidence, rather than emotion and confusion. Our experts carefully showed that our products were noninfringing and demonstrated specific examples of prior art.  In the end, the jury saw through and quickly rejected plaintiffs' FUD. The jurors took a bit more than two hours to find every one of 23 issues in favor of Red Hat and Novell.

We learned many things from this experience, but I'll note just three here. We now know for certain that those in the business of bringing software patent lawsuits are not invincible, even in the supposedly patent-friendly jurisdiction of the Eastern District of Texas. We know that Texas juries are willing to reject bogus infringement claims and invalidate bad software patents. And we know that attacks on open source based on FUD will not stand up when subjected to the light of truth.



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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.


I hope that having gone through the experience, Red Hat now sees the dangers of software patenting and will give up the practice, lest it one day morph into a troll. After all, Microsoft was once vehemently against software patenting and now engages in much troll-ish behavior.

Agreed. I think Red Hat's culture is one of being seduced by power and the opportunity to have some influence so we need to be especially watchful of them. Really though I'm just glad that there's a total victory in a relatively minor issues, but just be warned that the enemies of freedom have more money and power than us. The internet depends on freedom to innovate. Without that we wouldn't have great cell phones, cool location based web-apps, the <a href="">DirtyPhoneBook</a> to mess around with people, and all kinds of other technological innovations. The internet depends on open-source to be morally more stable than the other side or progress would never occur. I just hope the guys working on video replacements can work up a better replacement to h.264 soon because that's a huge battle thats being lost in a big way right now. I only wish I had more time to donate to open-source than I already do

If RedHat does not get patents, then it will ALWAYS be subject to potential litigation from bull-ish companies.

If, however, they get a whole whack of patents, then they can pre-emptively (sorry for the spelling) prepare their defence and counter attack against future litigation. Specifically, they DO NOT HAVE TO use their patents for aggressive purposes.

Well, Brad, I could hope for even more. I could hope that Red Hat would start to support efforts to eliminate software patenting entirely. But they don't. Indeed, they could make a pretty good case that it's not in their interest, because a good many of Red Hat's customers are the patent holders.

Ultimately, what Linux distributions want isn't Free Software, Freedom, an end to Software Patents or anything else that you, I, and RMS hold dear. It's to make a profit on our backs, defending themselves when it's in their interest and taking advantage of the many community contributors who are effectively their unpaid employees.

Red Hat, Novell, and Ubuntu are in no way morally superior to Microsoft. Ultimately, they all want the same thing. And if that means supporting policies like software patenting that ultimately result in the demise of Free Software, it's fine with them.

So I guess being basically <a href="">the only software vendor on the Planet Earth to file an amicus brief against patents in the Bilski case</a> doesn't count as "supporting efforts to eliminate software patenting" in your eyes.

I guess <a href="">when PJ at Groklaw says</a> "I love Red Hat. They stand alone so far among vendors, willing to stand up and express what the FOSS community would really say if it could speak with one voice to the Supreme Court. This is certainly what *I* would say if I had that chance," she's just some knucklehead who's talking out of her hat. Is that your position?

We won't even go into the ludicrous nature of the statement that we are "taking advantage of the many community contributors who are effectively unpaid employees," since every single Red Hat engineer produces open source software, every single day. To imply that we're not doing our fair share is a slap in the face. It's an insult to the *thousands* of employees at Red Hat who care *deeply* about these issues.

You seem to think that if we're not in 100% agreement with you, then we're against you. 95% agreement isn't sufficient. But I suppose that extremism in defense of liberty is no vice, eh?

I'm shocked, Bruce. Really and honestly shocked. I thought you were more civil than this. And I certainly thought you were smarter.

Of course I'm involved in a number of anti-software-patenting efforts. Of the two I last communicated to Michael Tiemann, in both cases Red Hat failed to do anything. One was the rewrite of the European Interoperability Framework, the draft of which was asking for royalty-bearing patents in standards, when Tiemann assured me that Red Hat was on the job and they never filed a comment. One discussed at the Open Source Leadership Summit last year got an outright refusal.

Filing a comment in Bilski is nice, but Bilski is not going to get us an end to software patenting - even if they ruled to do so, congress would fix that in a month. It's only through legislation that we're going to get out of this mess, and Red Hat is not present in lobbying or evangelism efforts directed toward the end of software patenting.

I am sure that Red Hat employees care deeply about Open Source, just as many Microsoft employees do. It's the company and its upper management that count, in both cases. Your sentiments as Red Hat webmaster are clear, but your control of the company direction is of course nil.

Go read Red Hat's patent "promise". It's not a license or obligation, and the last paragraph specifically disclaims liability for action by any other entity, so when Red Hat's portfolio is eventually purchased (possibly with the rest of the company), the promise is off and your defensive patents - as Brad mentions - become offensive. Unfortunately we are too experienced with Linux distributions going hostile. The fact that there's no protection from Red Hat doing so is more than unfortunate. It's unacceptable.

<em>"... when Red Hat's portfolio is eventually purchased (possibly with the rest of the company), the promise is off and <strong>your defensive patents - as Brad mentions - become offensive</strong>. Unfortunately we are too experienced with Linux distributions going hostile. The fact that there's no protection from Red Hat doing so is more than unfortunate. It's unacceptable."</em> [emphasis added]

You're stating <strong>possible</strong> future events and conjecture as guaranteed outcomes upon which you're railing against us. You lost me there. Can you tell me how you're certain these things will come to pass? I can take some PTO if you need me to ride with you in your time machine....


Of course I have observed the founding of Caldera through their acquisition of the assets of SCO except for Tarantella, and their eventual transformation into what has generally been referred to as "litigious bastards". I even had friends-and-family stock in Caldera's IPO which I was fortunate to have unloaded, at a loss, before they got really bad - I wouldn't have wanted to feel involved with that.

I also observed DEC get eaten by Compaq, which was eaten by HP while I was a section manager there. And I observed HP's internal behavior toward Linux, including when Microsoft briefed HP on how they'd sue Open Source projects - Samba, Sendmail, and a list of others - and an HP VP called for us to back off from Open Source and Linux in an internal memo. Fortunately MS was persuaded to back off that time.

And most recently I've observed MySQL being sold to Sun which almost immediately was eaten by Oracle. Now, Oracle doesn't really have the best interest of MySQL users in mind.

Mergers happen. Red Hat is a merger target, either to join a larger company or to aggregate with some similar companies and thus to have significant management changes.

You can't really hold off a merger without being sued by your stockholders. Poison pills have gone out of style because stockholders see them as against their interest.

So, IMO, it's close to inevitable that Red Hat will not remain the company that it is today for another 10 years.

Bradley is nicer about this because SFLC is sponsored by Red Hat, through the Linux Foundation. I think our community seriously needs waking up about the inevitable conflicts of interest that commercial Linux distributions have and cause. The developers and users interest is, IMO, endangered.

> ... and an HP VP called for us to back off from Open
> Source and Linux in an internal memo. Fortunately
> MS was persuaded to back off that time.

HP just announced they have a new VP of the Software and Solutions Division. It is Bill Veghte, former Senior Vice President of Microsoft's Windows division

I fear (even more?) hard times are coming up for Linux and HP-UX in HP's Software and Solutions Division.

And independent of HP's future, I totally agree that companies can go from good to bad in a wimp. It doesn't even have to be a merger or sale. All it takes is a new manager feeling the need to change things to justify his/her existence. Or maybe just an existing manager having a bad hair day.

Therefore, protection needs to be build into the system, and must not depend on the goodwill of those currently in charge of a company.

Greg, try not to get flustered about people like B.Perens expressing their opinions.

Even if a human being or company makes a decision that is 100% correct, there will be complainers.

Even if BP were to say, "Ok, we aren't going to drill for any more oil. We're going to give the world the exact same amount of energy and do it 100% with solar and wind combined - AND we're going to employ ALL employees and support companies that existed during our oil days,", there would still be turmoil and people saying BP made a bad choice.

Sad, but true...

(Sorry about the ludicrous analogy. For demonstrative purposes only.)

I disagree that every company that gets software patents is a potential troll. Right now, patents on software are necessary if for nothing else than protection. Hopefully one day all software patents will go away. But until then, companies that apply for patents and pledge them to the OIN are just making the best of a bad situation. I would also note that Red Hat has, as far as I have seen, been very level handed about patents. The case where they were possibly infringing, they worked out a deal for the entire community (something related to Java I think).

What I said in the first comment was terse; I've written more in <a href="">these</a> <a href="">three</a> <a href="">comments</a> below, and I believe they are are responsive to your comment.

>>I disagree
>>by Gary Scarborough on 3 May 2010

I'm a software engineer, albeit a junior one, and a CEO, although a small company, and I do NOT think that software patents are auto-trolls. The distinction, however, is in minutae, or too small to readily notice.

Many corporations will act in ways that are at least shameful, if not harmful, in order to protect their patents, even corporations that know patents are NOT the correct way to protect software. Software, as all written works are, is copyrightable. Copyright extends CONSIDERABLE protections against infringement, and lasts a good deal longer than a patent at some 90+ years. [Thanks Disney, you jerks.]

My gaming system software is not going to initially be open source, because of fear of patent trolls, and other legal abuses. I will maintain a closed-source distribution, releasing to a commons limited license post-2.0-production, or "after upgrade." That means all open sourcing will be a grade behind. This protects my rights, my software, and prevents other bigger companies from scooping me on my own product.

Once I've established my brands, passed the 1.0 release, and a few other criteria, I will pass the patents into a protected status that will be shared to the open source movement upon 2.0 status. By then, it will be too late for competitors and larger corporations to wipe me out with faster or more aggressive legal or marketing activities. Any patent infrigement claims will then need to be backed by prior art - usually an easy case to defend against as Novell has repeatedly proven.

Once I hit 3.0, name recognition and market awareness can be claimed such that I can release all other source and materials into the open community. So, the patents really only SLOW me down from being totally open, they don't stop me. Unless you guys and girls know of a friendly nation where I can launch code from and be immune to U.S. patent quagmires... ?

I am Demopoly. I code therefore I am. You can find me on gmail if you can add the right two words together. K THX BAI. [Yes, I am over 45, why do you ask?]

Anyone who knows about patents knows that every large company needs patents to survive in this Business. Companies trade patents like War Generals trade prisoners. Does that make War right? NO, but when someone else attacks you, there must be a defense system or else you we be destroyed.

Regardless of your personal opinions on the patent system, there are people besides these trolls with REAL patents and companies must have a portfolio to trade patents with others, even if they do not plan to exercise them in a proactive manner against others. Most people agree that the system is flawed, but until it is fixed, which Red Hat is actively lobbying to do, they MUST continue to obtain patents.

If I recall the law correctly, in cases like this one, where it can be demonstrated that the patent-holder was aware of the prior art while filing for the patent, companies like Red Hat can sue for their side of the legal costs.

Is Red Hat doing that in this case, or did the jury make any awards of that type?

According to a short IP law course I took, filing a patent claim while knowing that you are not in fact the inventor of the idea is a form of fraud. So is suing based on the patent knowing of prior art that clearly invalidates it. Criminal charges should be brought against the officers of IP Innovations, and professional misconduct charges against the lawyers.

"filing a patent claim while knowing that you are not in fact the inventor of the idea is a form of fraud."

Although this is technically the case - it's perjury, lying under oath - it is no longer prosecuted for patent applicants in the U.S. The patent office eliminated their enforcement division in 1974, and that's the last time that perjury on a patent application was prosecuted. These days, you can lose a patent for "inequitable conduct", but the only penalty is that you lose the patent and you are free to file as many more patents as you like.

Yeah, Bradley Kuhn, former executive director of the Free Software Foundation, co-founder of the Software Freedom Law Center and president of the Software Freedom Conservancy, get a clue! You clearly have no idea what you're talking about!


Do I think that Red Hat should give up on patents? No, I don't. I think that Red Hat needs to continue to file defensive patents. I also believe that the Red Hat Patent Promise is a sufficient hedge against bad behavior, so long as we don't decide to change that policy.

But it's a position about which reasonable people may disagree, and if anyone has earned the right to express his informed opinion, it's Bradley Freaking Kuhn. Sheesh.

Greg, if Red Hat is only getting patents defensively, why don't they license them freely and in perpetuity for use under any Free Software license?
Patent promises are by far not enough; even Microsoft gives those.
Anyway, I don't agree that simply because you get certain benefits from joining a "club" that you should necessarily join it. Red Hat, AFAIK, was a profitable company before it had patents. So, it stands the reason that the only thing acquiring patents can do is make them *more* profitable. How much money is enough?
Why doesn't Red Hat take every dollar it spends on getting new patents, and use it as lobbying dollars toward ending software patenting in the USA?
The reason is probably that shareholders demand more and more profits, so Red Hat's leaders must make all decisions based on what makes the most cash, not what is in the best public interest.

Wow, I'm not sure how the discussion jumped from winning a patent case that benefits open source to being opposed to the public interest. I've heard the argument before that patents are such bad things that we should have nothing to do with them, and I think it's unrealistic. As my predecessor, Mark Webbink, used to say, we've got to live in the world as it is. I have great respect Bradley, and am happy for him to express his opinion. But having just completed a long hard fight against some bad patents, and having just won a jury verdict in favor of open source software, I'm surprised to see this.

Well, the patent verdict isn't really a victory for open source primarily; it's a victory for the companies involved. The outcome is probably neutral for the advancement of Free Software, in my view.
I agree with you, Rob, that you have to live in the real world, but there are lots of options of what can be done, such as granting a patent license for existing patents rather than only a promise.
Anyway, I'm glad you were able to defend your company and I'm sorry it was so much work. I guess I'm not much for celebrating skirmish outcomes when the patent system as a whole is so stifling to software freedom and so many in our community are calling merely for "higher quality on patents" rather than trying to stop them. I've been called a wet blanket before, so this wouldn't be the first time by any means. :)


The best way for Red Hat to give a patent promise to Free Software is to *use* the techniques described in the patents that they file in software released under the GPLv3. This is a practical way of giving patent grants to Free Software authors. GPLv3 Section 11 is the best protection for software authors (IMHO).

Anyway, I'm late to this discussion but I still want to congratulate Red Hat and Novell for fighting this case and proving that patent trolls can be beaten, even in East Texas.


The absurdity of the statute grants of legal monopoly are finally being seen by regular folks.

Here's something very important on the subject:

Against Intellectual Monopoly:

And for that matter, the organized blog site "Against Monopoly":

"If RH is only getting patents defensively, why don't they license them freely and in perpetuity for use under any Free Software license?"

IANAL, of course, but I would guess it's because the patent promise, as currently worded, provides the same benefit to the community, right now, without committing Red Hat to future behavior. Would a perpetual license be more binding in the future? Sure. But Red Hat's promise seems to be equally binding *now*, and anyone who writes code *now* relying on that promise is protected by it. If and when the policy changes, I'm sure that you and others will point it out, and you would be right to do it. Until then, why throw stones?

And of course Microsoft only offers the patent promise on an *extremely* small minority of its patents; our promise extends to *all* of our patents. I'm sure that you can recognize and appreciate this fundamental difference, right? Of course you can.

"Red Hat, AFAIK, was a profitable company before it had patents. So, it stands the reason that the only thing acquiring patents can do is make them *more* profitable. How much money is enough?"

Point out a single instance in which Red Hat has made a dime from patent licensing. Go ahead. I'll wait. And hey, maybe we reserve that right in the future -- but again, you can judge us on what you think we *might* do, or what we *have* done, over and over. Which has been to fight on the side of the angels.

"Why doesn't Red Hat take every dollar it spends on getting new patents, and use it as lobbying dollars toward ending software patenting in the USA?"

Maybe because we could spend every dime we have in the bank, and it would still be the equivalent of bringing a switchblade to a gunfight. Better to protect ourselves as best we can, and slug it out in courtrooms and win, and better to file amicus briefs in cases like Bilski -- where it's not a matter of throwing money away, but being on the right side of the fight as a matter of public record.

Come on, dude. You don't have to like our patent position, but how about a little credit where credit is due?

I think Bradley is making two arguments there: (1) a license is a better legal structure to use than something denominated as a promise or pledge, and (2) the Red Hat Patent Promise shouldn't be limited to the set of free software licenses that it currently specifies but should cover all free software licenses. Both are legitimate points worth exploring and debating, and in my opinion do not have obvious correct answers; when Mark Webbink crafted the Red Hat Patent Promise several years ago it was not intended to stay fixed in that form for all time (indeed, it was subsequently modified in 2007, when GPLv3 and LGPLv3 were added to the list of covered licenses).

The idea that something like the Patent Promise could *as a policy* be changed prospectively -- to take what I think is a relatively harmless example, suppose Red Hat were to remove the largely obsolete IBM-PL from the list of covered licenses -- is true regardless of whether it's structured as a promise (the Patent Promise indicates that the public can rely on this promise) or a license (which is a kind of enforceable promise not to sue).

Greg, I think generally patents are sought by companies that either (a) have business model plans to do licensing (and I agree that Red Hat has likely not done this yet) or (b) wish to increase the portfolio value of the company on paper by having more "IP" assets. I theorize that (b) (along with the defensive arguments already made) are the reasons Red Hat gets patents. Your company is more valuable on paper because you have them. That's why I argue that getting patents is about making money. (I think that addresses another question asked of me elsewhere in thread.)
As for the patent promise, I call out Red Hat on it precisely because Red Hat is known for setting a higher standard. My hope would be that you'd go beyond what everyone else does and make the gold standard of good patent policy in the Free Software community. I agree that when the promise came out, it was the best ever done. Now, it's not much better than what else is out there, so I'm asking Red Hat to step up and do something better. Fontana outlined a number of issues that should be looked at for improvement of Red Hat's patent policy.

Everyone should keep their eyes on all taking out patents and what they advocate; however, there are plenty of companies doing a lot more harm than would be Red Hat. If Red Hat were bad, I think we would want to save eating them up until after we had our turn with many others, including those that have not spoken against software patents very much or who have actually spoken in favor of them.

In the current system, assuming patents were affordable, it would actually help FOSS projects to have some of the contributors instead take out patents. This would be a loss to society, but given our broken system kept in place by Congress and not rejected by the courts (at least not so far, in part because the players accept the game), it might be a bigger loss to allow patent aggressors as well as those using patents to negotiate royalties against competitors using FOSS and using the threat of lawsuit (or using threats via proxies) to keep FOSS supporters out of competition as suits the patent holders' strategies.

We should also look at who has given money to this company suing Red Hat (or to those that supported this company).

And likely Red Hat is contributing net on the positive side of the ledger through their use of patents (besides by helping them stay around to fight longer). They have money to help fight on behalf of FOSS and show others that FOSS is an asset to society and the numerous people that support FOSS are much more likely to be less greedy, more clear thinking, and more supporting of society, progress, and competition, than are those doing the attacking or funding those doing the attacking.

Over time, as the problems with software patents (and even with patents in general) become clearer to more voting citizens, legislators, and judges, software patents will be overturned (if this doesn't happen earlier, eg, through a Bilski ruling).

Why the article says multiple times "bad software patents" like there were good ones as well?
Software Patents are bad in their roots, because they stop innovation, harm society, bring monopolies upon ideas, gives nothing back to people (who has ever become a better programmer reading all those "genius inventions" described in software patents?), are a way to steal other's people work.
Yes, RH won, but who in the FOSS world has enough money to stand in court? And just recently a German court judged M$ FAT patent valid! This even if the first trial said it's not valid, and in Europe software patents are not legal (but European Patents Office, of course, approves them in exchange of money). So pro-patent lobby is going to make we all future slaves of technology and be impeded to produce software (except that as employed of some big corporations).
Is this a desiderable future?
So don't even suggest the idea that not all software patents are bad, please.

... are of two kinds, bad patents and bogus patents. i could be wrong, explain.

Those software patents that meet the meaningless statutory requirements of today's degenerated patent system are "bad" because really dangerous, whereas those that were invalidated in the court proceedings under discussion here are not bad but just bogus software patents.
Of course even when you are attacked with bogus software patents you lose time and money, especially so in the US where the loser doesn't pay for lawyer fees of the winner.
Thus, no matter whether bad or bogus, opensource software always loses.

"LG Patent Lawsuit Backfires, As It Ends Up On The Hook For Infringement"

Defensive patents played a role.

Essentially, if a dog tries to bite you and you try to evade, the dog might try again.. and again .. and again. You will lose a lot of blood after a few bites. It's tough to avoid dog bites, especially if the dog is large and doesn't fear you at all.

If a dog tries to bite and you bite the dog back (or poke out its eye, etc), then the dog will really hesitate attacking you or anyone else again. And other dogs might even learn from this.

Meanwhile, as Red Hat did this time around, busting the patent is about as good or better than biting back (it's like knocking the dog's tooth or teeth out), but it is not always possible. And the dog might even go and get a mean set of dentures. It worked in this case. The point is that dogs should not be in a position to be allowed to bite you, and currently they are. Being able to bite back can be a very useful tool in the arsenal and even become a life-saver.

A number of people have been making this point. It is legitimate to view all software patents in isolation as 'bad' (i.e., regardless of how they are used), and indeed this has been Red Hat's corporate position, though expressed in different words (see e.g. and Even so, it is not inconsistent with this view to regard some software patents as clearly worse than others -- namely, those that do not even meet the statutory requirements for issuance of a patent. That was true of the patent claims asserted in this litigation against Red Hat and Novell: they did not meet the legal requirements of novelty and non-obviousness because of the existence of prior art.

Richard, I think you have it backwards. Patents that are legitimately granted &mdash; those that are unassailable via the reexam or other processes to have them remove &mdash; are the worst there are. Consider the RSA patent, which was clearly a novel, non-obvious invention. That patent is probably the most harmful patent ever for Free Software, as it set back cryptography in FLOSS by a decade.
I've been flamed on this thread for not celebrating this victory. While it's a net good for Red Hat that a few patents are out of the way for Red Hat, I don't think the impact of knocking otherwise illegitimate patents out of the way does much for Free Software advancement.
Indeed, the confusion about software patent legitimacy is good for Free Software in some ways. For example, a given troll doesn't know for sure if a particular patent can withstand scrutiny when enforced, because the scrutiny that should have been there in the application process is nearly non-existent.
By having a confusing quagmire of illegitimate and legitimate patents, it keeps the patent mongers off balance a bit. If we actually have software patent reform rather than software patent abolition, things will likely get much more grim for software freedom, because while there will be much fewer software patents, every patent will be a huge threat, and the weapons will be more at the ready for patent enforcement agents.

>Consider the RSA patent, which was clearly a novel, non-obvious invention.

A variant of that algorithm is described in medieval Jewish literature. I'll grant that knowledge of that algorithm was restricted to Jewish males who were at least forty years old, married, and had living children who had reached puberty.

Bradley, is there some evidence that Redhat is profiting off its patents in a way that it wouldn't had it not filed those patents, or that is exclusive to other companies profiting from those patents? (not a rhetorical question, I don't know the answer)

Also, do you see no utility for FOSS companies in maintaining a defensive patent portfolio, until the day when software patents are eliminated?

I would think that giving up their defensive portfolio would expose Redhat (and other FOSS companies) to significant losses from lawsuits like this, which is money they could otherwise have allocated to patent reform lobbying.

I know the question was not addressed to me, but all large software companies (that indeed must have patents for survival) enjoy a strong competition advantage in relation to new comers that don't have the money to buy a solid defense-portfolio.

In a market that already has a tendency to monopoly - due to network effects - this is not detail.

A competition neutral solution would be the pooling and automatic sharing of patents for defense purposes...

Bradley et al,

I'm working on a large software project that I'd like to release as FLOSS in the near future. I try to keep worries about software patents at a minimum so they don't discourage my work, but as I get closer to release the topic keeps coming up in my mind. I don't have high hopes for Bilski.

So in the meantime, Question 1 is how much should an individual developer working on a single-person project fear being sued for patent infringement? I asked RMS this question last Friday and his answer was "considerably". OTOH, some speakers at a conference on patents and free software at the University of Colorado last week ( indicated that it was very rare as plaintiffs are more likely to go after deeper pockets. I've also read Dan Ravicher's excellent article from 2004 ( which mostly takes the latter position.

Question 2 is how does this individual developer minimize the risk of losing his or her life savings in a Quixotic attempt to make the world a better place?

Any comments will be appreciated.

To be safe, you just have to avoid write (or at least release) ANY code, proprietary or Free does not matter.
FOSS is more vulnerable because to quit it they just have to sue 5-10 developers, get them all their money they have (or more), destroy their lives and doing so they will "educate" other developers. Companies that use or support FOSS will not be able to mantein the development of entire FOSS ecosystem without the community.
Instead when they sue a proprietary company, only that product of that specific company is damaged or quit, or simply they get a lot of money, or make the company waste a lot of money in the trial. Other proprietary companies will not become "educated", and thinking "I've been lucky this time again" will continue their business like nothing has happened (crazy!), so they on the long term will be the next target, sooner or later.
The only hope is to develop software so uninteresting that no one will care to sue you. If so, better save time from the beginning and not code at all.

Well, it seems to me that these ruined developers have done a poor job of spreading the word of their misfortune. There are hundreds of thousands of projects at places like Google Code and SourceForge (, yet the only individual developer attack I know of is Jacobsen v. Katzer ( which was settled in favor of the open source developer and resulted in the patents being invalidated.

Do you have personal experience or other information you can share with us?

Periodically, I hear of cease and desist letters aimed at projects, but more pervasive is that the patent threat is used to make it harder to compete. Those with patents drain revenue from customers using things you create, and they also spook customers to avoid vendors that don't appear to be in a strong position and willing to indemnify them and overall avoid FOSS more frequently. The threat of attacks is taken seriously by customers, and this hurts the adoption of open source and the competitiveness of smaller entities.

This software patent system pretty clearly does not promote the progress of science and useful arts.

A few important points:

Patents are an excellent tool for the larger companies in industry to use to put a hold around competition: they can use the weight of their accumulated patent portfolios to throttle innovation and lift a biased tax against new players (outright eliminate the more dangerous ones, or pressure a buy-out on the cheap). In fact, against this potential abuse "trolls" help provide a check.

The system is clearly biased against poor inventors. If poor inventors were allowed to participate as is the case for copyright, FOSS devs would have tremendous leverage against anyone. Instead we get zero credit for innovation and inventions because it is too costly, time consuming, and anti-social to take out patents. Further, others can take our innovation, add a little idea here or there, and then get a patent they could then use to block our own growth into these new places.

Thank goodness Einstein, despite being exposed to the patent system, decided to make real contributions to society (with the obvious help of peers and social context) and did not feel he needed a patent to innovate, a patent that would have then stifled progress against his peers.

It takes some real lack of ethics to leverage all of society and then turn around and exploit unconstitutional law back against it and against all the people giving of their time freely (or even for pay but

In short, "software patents" have many serious problems (some of which are shared with other patent types).

Because software is so accessible to so many contributors (including many hobbyists), each of whose existing and future contributions in an area can be shut down for a very long part of their productive lifespan and despite huge prior investments in time and even money;

.. because collaboration has today advanced beyond at any point in time in our history thanks to inexpensive computing and the Internet, and monopolies and royalty restrictions and costs are disincentives (or bars) to collaboration;

.. because software requires extremely low-cost investments (besides the cost of a person's own time and skill) to design, implement, re-tool, distribute, etc,, investments that don't require high risks or financing relative to some other fields;

.. because software defies the laws of physics (it's information) and hence can be used to create amazing things in little time (much as might come to the imagination of a great fiction writer), things that can be blocked by monopolies or, even from royalties, can be neutered from wide-spread access;

.. because software isn't even as complex as mathematics and various other advanced sciences whose creators require no patents as incentives;

.. because software provides tremendous immediate direct value and incentive for its creation to the creator, and because it can even be leveraged very successfully to improve business or make money, even if competitors have the same access to the software, never mind to the general ideas included in the software;

.. because software is extremely precise in many ways (thanks to the digital nature of it and its modeling of discrete pieces of information) and hence building on others' implementations is very important for managing complexity and fine-tuning products and removing errors (making ideas and concept the easier part of the process of taking a good product to market);

.. because *open source* software is such a large contribution to the wealth, access, and knowledge of society and to other inventors, especially in light of the anti-competitive and anti-collaborative features of opaque (blueprint-less) closed source software, and whose zero costs and most valued copyright open source licenses are incompatible with royalties;

-- because *open source* blueprints provides a lot more knowledge to society than do the public patent "teachings", yet the latter can deny the creation of the former whenever the broken rules of the patent system are met.

.. because software patents are extremely broad in relation to the full engineering work required and hence negatively impact many others whose innovation details were never at all anticipated by the patent author;

.. because progress is promoted by leveraging others now, not after 20 years -- 1000 minds beats one mind;

.. because all inventions happen with the large help of the social context under which they were developed: the invention is potentially likely clear to many (or would be in short time), and required many free contributions that occurred within the last 20 years (including conversations and articles by faceless, creditless individuals) [I mean does it make sense to give **all** credit for 20 years into the future to a single person willing to plant the roadblock?];

.. because monopoly or other control for 20 years promotes sloth on the part of the patent holder, hence helping to limit future innovation by any inventor that gets the very powerful patent government subsidy;

.. because it makes no sense to use as a bar "that which is not obvious to the average practitioner", as this means the very many who can invent the same thing quickly or within a few months, who may have far greater insight into the main problem, and who may even have considered the invention trivial and did not patent it, must now all be barred for 20 years at the wishes of the patent author;

.. because the concept of having a bar for invention quality, even if this is a high bar, ignores the other Einsteins that could otherwise contribute greatly and provide competition into the future now can be stopped in their tracks for 20 years, to the detriment of society and to the freedoms of these individuals;

.. because trying to invent around an patent can be extremely inefficient as well as near impossible or only by resulting in very inferior alternative inventions (eg, are we really going to invent around the round wheel? -- no);

.. because patents clearly bias against the poor, against those that spend time building things and perfecting things, and even against those with fair means but who cannot afford to patent many things they can think of, people all of whom then can be barred from contributing further in many areas because of other patents as well as in their own area of expertise whenever patents are taken ahead of their inventions by those copying, and while those with patents can do whatever they want with the formers' inventions;

.. because the broken patent system biases against those that find the system terrifically antisocial and wasteful and hence have less incentive to try to patent against their better conscience;

.. because the patent system potentially gives so much power for such modest contributions and all to a single person (the "first"), thus, highly encouraging those with lesser understanding to copy others (especially open source projects and open discussions on the Internet or elsewhere) and then do the last mile of writing the patent application and filing as quickly as possible while writing the most general/vague patents possible;

... and as confirmed by many studies that don't even analyze some of these more obscene cases mentioned above...

software patents have the potential to exact an incredibly high cost on social progress and on individual freedoms, but almost surely exact some significant cost today as they are being enforced in practice. I don't see how anyone can argue they are constitutional. Why are they still an issue?

.. oh, that's right. Patents help a few groups make a lot of money and/or protect themselves from competition. Some major shareholders really love them. Many lawyers benefit from them quite a bit. Most of the rest of us don't even realize patents are so foolish because they are written in a "funny" language and we were taught to believe patents were a thing to be admired. These people taking real wealth from society have the means and desire to keep lobbying very hard for them. I guess the trick is not to kill the golden goose, just keep it locked up and whack it on the head now and again when it slows down too much. A tax on innovation, paid by most who do the bulk of the work to those with the savviness and money to leverage the broken system.

I could mention a few more things that may not have been clear.

That so many participate in software means that there is that much larger of a cost to patents than in a field with few participants (and were arguably a patent might lead to sought after innovation).

So in fact the low cost to develop software (which was made even lower with the arrival of widely accessible quality open source software) ultimately becomes an important reason for this higher opportunity cost (and liability) that comes with software patent system. [Of course, this has relevance when judging if a software patent (or all software patents) would promote the progress of science and useful arts as the Constitution requires.]

Open source leverages the Internet and collaboration much more than does closed source development, so, when shut down, open source is what is hurt far more in today's world and relative to its potential than is closed source development.

Open source already donates a ton of technological know-how and innovation to society going beyond the positives of what the patent system provides.

Thus, it seems to me that a 'no-brainer' improvement to patent law, which would additionally require few changes to the law and have a modest impact on existing patents, would be to give open source safe harbor. Taking this step would do wonders to limiting the potential damage of the patent system. This would have the added benefit of actually encouraging more pro-society open source development.

So when do we start the letter writing campaign? When do we start the mass mailing of this educational material packed inside a Linux Live CD to all Congressional representatives?

This is an important victory for Open Source. It takes us another step in the direction of establishing that it is pointless to mount a patent attack against Open Source. We need to firmly establish the principle that there is absolutely nothing to be gained by a software patent attack on Open Source and it is pointless to even try. How we do that will of course vary from one attack to another but the "prior art" defence has worked well in this case and in the attack on OpenSolaris.

Steve Stites

Regardless of the rightness or wrongness of software patents, I agree with Mark Webbink as quoted by Rob. If we ever hope to reach the point where these types of patent disputes are a thing of the past, it's going to take a lot of gutsy companies willing to put their money and reputation on the line as Red Hat and Novell have done. Thanks to both great companies for your commitment to Open Source.

I think it a bit of a pity that the anti-patent lobby has chosen a victory against patents to stridently nitpick one of the victors. Let me know when you all have freed yourself of ever using a device covered by a patent. Still driving around in cars? Talking on mobile phones? Using computers? If not, then maybe you're pure enough to cast the first stone.

I too am against software patents, and I don't really support the 'defensive patents' principle. I think this case has shown that you don't need to have patents to fight a battle against them. But this another small step toward a world where we have no patents, and I think that's good.

Have fun,


>> Let me know when you all have freed yourself of ever using a device covered by a patent.

Some people find software patents distasteful but not other patents (or they find software patents to be among the worst types of patents). But even if the person were against all patents (eg, on constitutionality grounds), why should the person avoid patented things they legally own? Perhaps hypocritical would be to take out patents and sue other innocent bystanders. .. I don't see your point, especially if the person thinks software patents are in violation of the Constitution (and hence illegal).

>> I think this case has shown that you don't need to have patents to fight a battle against them.

Software patents make no sense in terms of helping society or promoting progress. If prior art cannot be found (eg, we didn't find the needle in the haystack, or many people recognized the same thing around the same time but only one sought the patent and got to the patent office first, or many find such an invention obvious or something they could develop within a year's time, or some were already working on a would be infringing product but did not finish it in time to form prior art, or people were busy with other things despite being completely capable of developing that invention independently, etc), then a company like Red Hat (which is in a position to afford to take out some patents) will be wronged by the broken system. And being wronged could ultimately mean being driven out of business.

I think defensive patents are extremely useful to most that produce products. It's useful as leverage against other product producing entities. :

>> As we sat down in our Menlo Park conference room, Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” OpenOffice is a free office productivity suite found on tens of millions of desktops worldwide. It’s a tremendous brand ambassador for its owner – it also limits the appeal of Microsoft Office to businesses and those forced to pirate it. Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.

>> Royalty bearing free software? Jumbo shrimp. (Oxymoron.)

>> But fearing this was on the agenda, we were prepared for the meeting. Microsoft is no stranger to imitating successful products, then leveraging their distribution power to eliminate a competitive threat – from tablet computing to search engines, their inspiration is often obvious (I’m trying to like Bing, I really am). So when they created their web application platform, .NET, it was obvious their designers had been staring at Java – which was exactly my retort. “We’ve looked at .NET, and you’re trampling all over a huge number of Java patents. So what will you pay us for every copy of Windows?” Bill explained the software business was all about building variable revenue streams from a fixed engineering cost base, so royalties didn’t fit with their model… which is to say, it was a short meeting.

>> I understand the value of patents – offensively and, more importantly, for defensive purposes. Sun had a treasure trove of some of the internet’s most valuable patents – ranging from search to microelectronics – so no one in the technology industry could come after us without fearing an expensive counter assault. And there’s no defense like an obvious offense.

>> But for a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace.

It's a shame that so long as FOSS is not safe harbor that patents are also not $0 and implicit because FOSS' innovation is being abused. Prior art has nothing near the power as does when a patent is gotten. So people "steal" from FOSS and then can take out patents and sue FOSS or make threats that slow down FOSS adoption.

>> I think defensive patents are extremely useful to most that produce products.

I should clarify:

**Assuming we are burdened with software patents**,

.. then defensive patents are very important to anyone that produces software, can afford the patents, and believes they are likely to become a target of a patent attack by other software producing companies.

As was mentioned in another comment, **if** there is going to be a gun fight, you likely want to pack heat yourself. [Not doing so is fine if you are very confident you can win out in the end (eg, through an eventual SCOTUS ruling against software patents).]

[I'm (hopefully safely) assuming that, unlike with a gun, a patent won't accidentally go off or lead to significant damage to anyone innocent.]

QUOTING: >> Let me know when you all have freed yourself of ever using a device covered by a patent.

Some people find software patents distasteful but not other patents (or they find software patents to be among the worst types of patents). But even if the person were against all patents (eg, on constitutionality grounds), why should the person avoid patented things they legally own? Perhaps hypocritical would be to take out patents and sue other innocent bystanders. .. I don't see your point, especially if the person thinks software patents are in violation of the Constitution (and hence illegal). END QUOTE

The reason is this: If a person thinks that patents are illegal, immoral, unethical and/or any combination thereof, but at the same time buys patented products WITHOUT expressing a dissatisfaction to the makers of this product, THEN he/she is tacitly giving support to the premise that patents are A-ok.

Quite simple, really.

Although, in practice, it would become highly impractical (nearly impossible) to live WITHOUT patented products or to express dissatisfaction EVERY time he/she purchased a patented product.

I think the original poster's comment was, in fact, rhetorical, meaning you (and I) should not have even replied. It was to make us think.

I guess you could say we are thinking out loud and to each other.

D. ;-)

In my view, the big problem with the patent system is that it was designed for a different era. As opposed as I am to software patents, it might be good to have a system that protects truly innovative work for some period.

Say for example that Apple and Palm have some real innovation in their respective patent portfolios. [I'm not saying that they do or don't, just using a topical example.]

These companies have done significant research, so maybe it is fair to allow them to exploit the fruits of that work. If it's fair, then software patents are useful.

However, when the patent system was designed, the pace of change was slower. Product cycles were a lot longer. Current patent terms were intended for that cycle. They have been maintained and/or extended by parties who have little interest in innovation. As a result they have transformed from tools that foster invention into tools that repress it.

The solution is simply to reduce patent terms to correspond to current times. Four years for a software patent and eight for a drug sounds about right. The term should start on a date no later than the date that a product embodying the technology is made available for sale. These shortened terms would instantly dispense with a large volume of spurious and incremental patent applications, and the process would streamline itself.

Better yet, implementation of rational patent terms could probably be accomplished without major legislative work. All that is required are simple amendments to existing laws and regulations.

Although I still fall on the side of eliminating software patents entirely, returning the legislation to implement the original intent might be sufficient.

>> Four years for a software patent and eight for a drug sounds about right.

Four years after approval by the USPTO and after many may have invested perhaps much more than 4 years of work (eg, independent rediscovery based on clues from living in the same context/society) does not sound very fair to me.

The worst problem with any time for software patents is that it is a game exploitable by the wealthy. Software can take any shape or form. Just like almost anyone can try to write fiction, almost anyone can describe software to do something.

If we do $0 and implicit, or at least $0, then we can do 4 years (or something shorter) starting from the moment someone writes down the ideas somewhere public.

If we don't do $0, we are doing most inventors an injustice (this is particularly relevant in light of open source.. proof of concept already exists). Software has many people that contribute ideas (with or without code). All of these people are being wronged if we don't give them the same benefit given to the very wealthy.

Above, I wrote a list of some more reasons why I feel software patents are great for stifling progress and rewarding the wrong people too much.

>> it was designed for a different era.

Let's look at this more closely.

The idealized intention of the original patenting long ago was to solve a possible problem that inventions could require very high risks so that the motivation to invent would not exist without a long term monopoly or exclusive control.

-- We had a much smaller number of educated individuals (in net terms and in percentage terms). This is important because it explains why extra incentives might be needed, and it means the liability to patent monopolies might be negligible in some cases.
-- Even fewer were inventors in some designated area and able to obtain financing otherwise. Again, the small numbers then explain much, and are nothing like the software environment today, more so in light of the international cooperation that exists.
-- The nation was very young and immature (eg, look at the state (a) of banking and finance, (b) of computing, (c) of transportation, (d) of advertisement and communication, etc), so there were many more obstacles to be overcome: it was much costlier to take those products to market. Do not underestimate this.
-- The products were tangible material with numerous costs associated with them (eg, replication and other material costs) rather than information distributable at virtually the speed of light for essentially $0.

Our first implementation back then was very crude, yet, amazingly, many of those features have survived to this day. A patent is granted, not based on a study of the industry and the possible positive as well as negative affects of awarding a particular inventor a monopoly, but rather if some ridiculous "inventive" bar is met, and then the patent duration is a flat 20 years for any patent that met that "inventiveness" bar. What if many people are inventing similar things or things that would be considered innovative because society has become very dynamic and rich (or a "super tonic" was dropped into the public water supply? The list of questions not asked and hence not answered is too long. In what other area of society do we grant monopolies anywhere near to willy-nilly?

So we had a crude system that may have been useful at some point in time, but, regardless, was designed under a very different context as today's society. Many of the crude components remained by the time of the middle 20th century when software and the Internet came into being, and they are even now around.

Let us not forget that the patent system was not intended to reward or subsidize inventors (even if we assume the implementation of the system is solid, which it isn't) or to fail to promote progress. Rather, it's sole intention is to promote progress.

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