This past fall saw both Novell and Red Hat taking actions that could potentially harm Linux as a whole. First, Red Hat settled out of court with patent troll Acacia Research, causing concern within the Linux community that Acacia Research would be encouraged to litigate further. Then Novell announced plans to sell its patent portfolio to a coalition of companies aligned with Microsoft. Both moves could spell patent problems for Linux in the future.
The Novell deal sends 882 of its patents to CPTN Holdings in exchange for US$450 million. Microsoft expressed pleasure at bringing Novell technology in-house, but declined to comment further on its intentions for these patents.
Meanwhile, in October, Red Hat was back in US District Court, Eastern District of Texas with Acacia Research over litigation relating to Acacia’s patents on systems and methods for exchanging data and commands between an object-oriented system and a relational system. While such patents could be used to take down almost every database-backed applications ever created, Red Hat decided to settle with Acacia for an undisclosed sum.
Together, these developments combine to form potential patent dangers for Linux in the future. Bruce Perens, cofounder of the Open Source Initiative and the Linux Standard Base, said that the primary problem with both of these events is fundamentally the same: The American patent system is broken when it comes to software patents. He said that the USPTO has even made things worse, recently.
“I think, actually, they just got rid of a whole bunch of blocks to patents, which is going to put more cases in court,” he said. “They just eliminated three objections around prior art, and they mainly did it so examiners can grant patents faster. I think the problem has just gotten bigger.
“We in the open-source community have looked at the situation politically and said, ‘We can’t do anything about this because the pharmaceutical companies are running the show.’ We can’t do that anymore. We are going to be in trouble. Microsoft is escalating a patent war against us.”
Microsoft’s targets
Perens fears that the lack of transparency in both the Novell deal and the Red Hat court case could lead to uncertainty and fear for Linux users. But no matter what Microsoft got in its deal for Novell’s patents, Perens said that the SCO case will not be coming back. That case was about copyright, and Microsoft’s allies have purchased patents only, said Perens.
Perens went on to say that the purchase of these patents by Microsoft’s allies was specifically designed to target the Open Invention Network (OIN), a company built to extend patent protections to Linux and other open-source project users. OIN’s CEO Keith Bergelt described the organization as “a defensive patent management organization with an explicit purpose of protecting and supporting the Linux community.”
Perens said that “the companies that have partnered with Microsoft are companies that potentially want to bring lawsuits, and they wanted to weaken the capability of the OIN to defend Linux by suing them.”
But Bergelt said that the licenses OIN sells will still include the Novell patents, even if those patents change hands, due to preexisting agreements and the wording of the OIN license. He also said that he did not see the Microsoft purchase as a move against OIN.
“I don’t necessarily view it as a threatening action. I would hope there’s some responsibility there, that they’d use the patents primarily to protect themselves and their fellow consortium members. For us, those licenses don’t terminate based on a change in ownership of the patents,” said Bergelt.
As a patent licenser, OIN is able to sell access to a portfolio of over 300 patents, provided the licensees promise not to litigate over any Linux-based patent violations. Some of those patents belonged to Novell and will be transferred to CPTN.
He also said that Microsoft had previously used a parcel of its own patents to sell interoperability licenses to Novell customers under the pretense that Linux somehow violated these patents. Bergelt said that Microsoft would use these patents as the icing on its existing patent litigation cakes.
When Microsoft was negotiating with companies it claimed had infringed upon its patents, said Bergelt, the company’s lawyers would push legally until an impasse was reached, then bring in the supposed Linux patents and allege further violations because the defendant was using Linux. OIN complained about these actions, and Microsoft has stopped using these tactics since May 2010, he said. Microsoft would not comment, citing the ongoing litigation.
Meanwhile, Mike Milinkovich, executive director of the Eclipse Foundation, agreed that software patents have to go, but he also has a more subdued view of the Red Hat settlement.
“I’m not worried about the Red Hat ruling. Software patents are basically a bad idea. There might even be an occasional software patent that is a good idea, but the pace at which software has been patented over the last 15 years and the sheer number of patents tells you that the implementation of software patents is bogus,” he said.
“There is no excuse for the software patents that are out there, and most of the patents I have read do not strike me in any way as innovative. We have a problem and there is no way the open-source community can stick its head in the sand and pretend it does not exist.
“The companies that are big supporters of the open-source community…I’m not sure it’s fair to criticize them for making the best of a bad situation. It’s up to them to make the best of a bad hand. I don’t fault Red Hat for resolving the suit. None of us knows what’s in that agreement, but I would not be surprised if they managed to write the agreement with some protections for their downstream consumers.”
