Patent Absurdity Becomes...More Patent


One of the big stories recently was how brave Sir Red Hat tamed a software patent dragon, ensuring that all those in Free Softwareland could sleep safely:

Red Hat, Inc., the world's leading provider of open source solutions, today announced the settlement of patent litigation involving Firestar Software, Inc. and DataTern, Inc. The settlement protects Red Hat's customers and the open source community from similar suits and sets an important precedent in the breadth of protection for the open source community.

Red Hat was sued for patent infringement by Firestar in 2006 and later by DataTern. Red Hat denied the infringement claims and in time drove a settlement that not only ended the particular claims against it, but also provided for extensive protections for its customers and the larger open source community that Red Hat relies upon.

"Typically when a company settles a patent lawsuit, it focuses on getting safety for itself," said Rob Tiller, Vice President and Assistant General Counsel, IP. "But that was not enough for us, we wanted broad provisions that covered our customers, who place trust in us, and the open source community, whose considerable efforts benefit our business."

The point being that Red Hat had gone out of its way to ensure that the agreement protected not only itself and its customers, but the broader open source community too. And kudos to Red Hat for doing so. But despite coming to this agreement, it emphasised that:

Red Hat has consistently maintained that software patents impede innovation in the software industry and conflict with open source development and distribution. Open source requires transparency that allows members of the community to use, modify and share software with one another without constraint.

In other words, it knew the whole exercise was a waste of time at a some deeper level, since software patents wouldn't exist in a world that truly wanted to promote innovation. That feeling was confirmed a little later, after

Sun conducted a thorough prior art search and submitted a reexamination request to the patent office. Based on the prior art found by Sun, the patent office has rejected all of the claims in Firestar's patent. This means that the patent will be deemed invalid within the next few months unless Firestar can convince the patent office to reverse its decision. Sun also shared its intentions and prior art findings with Red Hat at an early stage in the litigation so that Red Hat could use the information to defend itself in court.

Again, much kudos to Sun for (a) finding some prior art to invalidate the patent and (b) nobly sharing it with its rival, Red Hat, in a spirit of solidarity. But what this does reveal is that here we have not one but *two* companies being forced waste much effort and much money to get somebody's claimed intellectual monopoly struck down for the good of the free software (and non-free software) world. Wouldn't it have been better if the patent had never been awarded in the first place?

With these kinds of stories popping up all the time, a rational person might almost get the impression that patents are more trouble than the worth. And – guess what? - they would be right:

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