Summary: Red Hat decides to use patents to mitigate the negative impact of patents
According to Red Hat’s new policy on software patents, “In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance,” which is to adopt defensive patents. “We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position,” Red Hat stresses.
Pieter Hintjens, former head of the FFII, is not alarmed by this. He writes:
I’d like to reassure everyone. Red Hat’s patent claim is very weak. iMatix first proposed content-based exchanges in the AMQP draft specs two years before Red Hat filed this. Further, the actual design is poor: dynamic routing XML is obvious but slow. There are faster ways to do this – extract the essential routing data from the XML and turn into a topic key or headers.
But the quality of the patent is actually irrelevant. What we have seen is that there is a risk that participants in the AMQP process will silently file patents on it. which would be detrimental to all of us, users and open source vendors alike. Even if this particular patent is contested and rejected, there will be others.
This new policy from Red Hat is being somewhat sensationalised by Slashdot, which even tries to make some comparison here to Microsoft/Novell (but if anything, it’s more like OIN).
“Red Hat’s patent policy says ‘In an attempt to protect and promote the open source community, Red Hat has elected to… develop a corresponding portfolio of software patents for defensive purposes. We do so reluctantly…’ Meanwhile, USPTO Application #: 20090063418, ‘Method and an apparatus to deliver messages between applications,’ claims a patent on routing messages using an XQuery match, which is an extension of the ‘unencumbered’ AMQP protocol that Red Hat is helping to make. Is this a defensive patent, or is Red Hat cynically staking out a software patent claim to an obvious extension of AMQP? Is Red Hat’s promise to ‘refrain from enforcing the infringed patent’ against open source a reliable contract, or a trap for the unwary? Given the Microsoft-Red Hat deal in February, are we seeing Red Hat’s ‘Novell Moment?’” Reader Defeat_Globalism contributes a related story about an international research team who conducted experiments to “quantify the ways patent systems and market forces might influence someone to invent and solve intellectual problems.” Their conclusion was that a system which doesn’t restrict prizes to the winner provides more motivation for innovation.
Jack Wallen proposes a better solution for Red Hat.
Of course, I understand why Red Hat would feel this necessary. But there are other ways around this that are less “’90s Microsoftian.” The most applicable idea is “prior art”. Basically what this means is any information (in any form) made public that is dated and relevant to the patents’ claim of originality can be used to dispute a patent. With that in mind I would much rather see Red Hat (in true open source form) create a sort of “patent wiki” that would post all information relevant to any ideas or technologies they are working on. With dated (and well documented) information, this would serve as strong defense against anyone applying to patent something Red Hat was already working on.
Mr. Wallen is probably right. Speaking for myself, I am personally opposed to fighting fire with fire, which is why I don't admire the OIN and hardly care for any of the output from corruptible analysts, no matter which direction they gravitate in. Red Hat should not take lessons from its competitors but instead do better (in the ethical sense, not just the purely business-wise sense). There is also a discussion about this in Linux Questions and The Register. To vilify software patents while embracing some simply leads to hypocrisy (hence no progress). █
“Small Software companies cannot afford to go to court or pay damages. Who is this software patent system for?” —Marco Schulze, Nightlabs Gmbh