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.”