Is This the Start of Red Hat 2.0?

April 08, 2008

Posted by: Glyn Moody

I must confess to a certain disappointment with Red Hat. On the one hand, it is clearly the leader of the open source world – both historically and in terms of its size. On the other, it is remarkable for the low profile it keeps: it is striking, for example, how much more influence Canonical's Mark Shuttleworth seems to command, even though his company is a tiddler by comparison to Red Hat's whale shark.

Maybe this is because Red Hat is too busy making money; maybe it's still got indigestion from gobbling up JBoss. For whatever reason, it is punching below its weight on the computing scene, and the open source world is suffering as a result. Indeed, I suspect the rise of the Linux Foundation as one of the primary mouthpieces of the free software community is, in part, down to the fact that Red Hat has abdicated its role as leader there, leaving a power vacuum that the Linux Foundation has been happy to fill.

Against this background it's good to see Red Hat riled and rooting at last:

Today, Red Hat took a public stand challenging the standards for patenting software. In the Biliski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account.

As readers of this blog will know, software patents are the very antithesis of open source. Or, as Red Hat puts it:

Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. It’s impossible to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot be efficiently searched. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus , a risk of litigation exist for every open source project, and the potential cost of patent litigation runs into millions of dollars for a single case.

The Bilski case referred to above is probably the best hope we have for some sense being put back into the US patent system. As TechDirt's Mike Masnick explains:

Nearly ten years ago, the US Court of Appeals for the Federal Circuit (CAFC) made its ruling in the State Street Bank case, effectively allowing patents on business models and greatly expanding the scope of software patents in one single move. While there are many problems with the patent system, this one decision made for a lot more bad patents very quickly -- and many of the ridiculous lawsuits you see today wouldn't even exist if this decision had gone the other way.

CAFC has agreed to a full court hearing to examine the scope of what can be patented. It may sound like a technicality, but it could be a very big deal. Going back on the earlier State Street ruling could effectively knock out many business model patents and software patents, restoring at least some (though, certainly not all) sanity to the patent system, especially in the technology world.

Let's hope this statement on the Bilski case is the first sign of a new, more assertive Red Hat that takes its rightful place as one of the key voices in the open source world - one that can make some much-needed countervailing noise to the high-level, and high-quality FUD being emitted by the Microsoft PR machine. Heaven knows, it's taken long enough.

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