Edited and reposted with permission from Pieter
RED Hat’s patent policy is not new, it dates from some years back, and as far as I recall was drafted by Mark Webbink, responsible for Red Hat’s patent policies, and who I worked with on several occasions.
The news is that Red Hat sought a patent on an extension to an open standard — AMQP — that it’s participating in. It was the way this patent was filed, and the matter it covers, that incensed other members of the AMQP working group.
“The news is that Red Hat sought a patent on an extension to an open standard — AMQP — that it’s participating in.”I’ll note that at the time Red Hat filed their patent for an XML routing ‘exchange’ — August 2007 — they had not yet written software. They were reading the spec and extrapolating into areas that were not covered by AMQP’s patent policy but which would be interesting to patent.
Red Hat has not really explained why they did this. Their rep on the working group has said it was to “test the broken US patent system” and to “defend against a known troll,” but neither of these explanations makes sense.
Further, they told no-one about it. I’d expect that kind of behaviour from some of the working group members, but certainly not from Red Hat.
Why is patenting around an open standard such a crime? Because it is a standard way to ambush the market. You spot an area that is not covered by the IP policy, you patent it, and when customers realize they need to extend into that area, you quash all competition and demand your licenses.
Again, standard operating procedure for many firms. Not for Red Hat.
What makes the situation more spicy is that Red Hat helped draft the AMQP IP policies. So they knew the loopholes.
“What makes the situation more spicy is that Red Hat helped draft the AMQP IP policies.”Some people have said that if Red Hat invented this, they have the right to patent it. To answer that: the AMQP spec which Red Hat read in 2007 was largely my invention: I dreamed up exchanges and bindings, hammered them into shape with my team and the guys at JPMorganChase, explained how they should work, explained how to extend AMQP with custom exchanges, wrote thousands of pages of design notes, RFCs, and diagrams that finally condensed — by my hand and over three years — into the AMQP spec that Red Hat read in 2007.
Yet it’s Red Hat that claims a patent on a trivial and obvious extension to the spec, in an area where it is clear that people will need to develop.
That is the news: a hypocritical move by a firm that has a lot more to lose than others by filing software patents around an open standard.
People have also said that Red Hat will never sue open source projects. This is not the point. We’ve seen some outright lies from Red Hat about AMQP — including one press release where they claimed to have invented it — and we know that they are desperate to sell MRG, their AMQP package. Patents are mostly used for that: FUD, to scare potential clients away from the competition. It is very rare to see real litigation.
People have said this is a defensive patent. Well, firstly it cannot be: it is a patent on specific functionality. The only possible infringers are Red Hat’s direct competitors. RabbitMQ, OpenAMQ, ZeroMQ…? Secondly, the notion of a “defensive patent” is marketing. Perhaps a “patent to trade with another large firm” would be more honest. And such practices are not ethical. Patent deals are very close to cartels. Those who refuse to take out patents, or are too small to afford the inevitable litigation they cause, are excluded and turned into clients.
And this is the point: Red Hat, instead of competing on quality, seem to be taking the same patent FUD route of other firms. “Competitor product X infringes on 237 of our patents. We’re not going to tell you which one.” That would be a tragedy and the community needs to remind Red Hat that software patents are not an option when it comes to selling software.
But What About the Promises?
Red Hat’s promise to not sue FOSS applications is irrelevant to an open standard. Any open standard needs adoption by commercial closed source applications as well.
Secondly, people keep mentioning OIN as if the only threat here was Microsoft and IV. OIN is a Linux patent pool. It is for defending Linux against very specific threats. Nothing about OIN will protect an open standard.
“Red Hat’s promise to not sue FOSS applications is irrelevant to an open standard.”And lastly, this is about an open standard. Think about that for a second. An open standard, and a firm taking patents on essential and obvious extensions to that standard. Unscrupulous at best. Being inside the AMQP process, I can say that Red Hat did this in secret and it looks very clearly like an attempt to own the space. To come back, as they did in the press release, with non-answers, suggests it is a deliberate move.
Note again: Red Hat’s patent, on an extension of AMQP, is not covered by the AMQP agreements, and clearly prevents any closed source firm from implementing XML routing with AMQP.
That is not about fighting off patent trolls. Neither is it about self-defence from attack. It is about using patents to block competition. Further, it is a first strike, thus aggressive.
Irrespective of a firm’s past behaviour and stated intentions, it is what happens on the ground that counts. I have all respect for Red Hat but their behaviour here is unarguably wrong.
Secret patents on open standards are unethical. They defend no-one. They damage the standard. They scare off adopters. They provoke an arms race. We’ve seen this a hundred times.
Defensive or Not?
There is a simple and cheap way to file prior art at the USPTO called a Statutory Invention Registration, which shows up on examiners’ searches and prevents the risk of patent trolls.
“…the patent system is much more friendly to its clients than those who would get in the way. ”There is also a project called Peer2Patent which is looking at new ways to bring prior art to the attention of examiners.
So the point that it is hard to fight patents by pulling up prior art is accurate: the patent system is much more friendly to its clients than those who would get in the way.
Any patent grants an exclusive right to some “invention”, i.e. some space in the market. Red Hat’s patent claims exclusive rights to do XML routing over AMQP. They have promised to share that space with FOSS developers. (A cynic would say: that’s because Red Hat make their money by repackaging FOSS code).
Now you say this can counteract a potential patent threat. Well, another patent might try to occupy the same space, or a different space. If it tries to occupy the same space, registered prior art is the fastest, cheapest, and most reliable antidote.
If the threat patent occupies a different space, then claiming this XML-over-AMQP space has zero effect. Zero. The two patents exist independently.
So what, then, is this patent good for? Only two things. (a) preventing real competitors from entering that space. Namely, Microsoft, Novell, IBM, and the many closed-source firms who today do XML routing and would love to put AMQP into the mix. (b) trading with other patent holders, so that Red Hat can gain access to some other space that is currently closed off to them.
“Who this patent does help is Red Hat, which is why they took it.”Neither of these two scenarios helps AMQP, neither helps FOSS implementers of AMQP, and neither helps the FOSS community. Who this patent does help is Red Hat, which is why they took it.
Examine the facts on the ground and put aside the marketing and rhetoric that companies issue. Sadly, Red Hat answers its shareholders, not the FOSS community. It makes dollars, and does exactly what’s needed to keep its free labour force happy, but not a jot more.
At the risk of ranting, I’d also like to comment on Red Hat’s claim that they “created an innovative patent settlement in the FireStar case that gave broad protection to the open source community.” In fact Sun did the real work, invalidating FireStar’s patents.
It’s a common belief that software patents would be fine if they only affected closed source products. But all software, closed or open, contributes. When we develop new standards, we need the closed implementations as much as we need the open ones. Even if I only make, and use, open source, I’ll defend the right of closed source firms to compete, free of software patents.
Red Hat seem to see software patents as a fair weapon in a fight with their competitors. They sponsor “peer to patent”, which is an attempt to make better, cheaper patents, not eliminate patents. In Europe, Red Hat have stopped working with the FFII to end software patents. They seem happy with the status quo.
“In Europe, Red Hat have stopped working with the FFII to end software patents.”The background to this is that the pro-patent lobby has been trying to get software patents legalized in Europe for a decade, first by modifying the European Patent Convention, then by the 2005 Software Patent Directive, then by EPLA in 2006, and now through the Community Patent and by unilateral decision in the EPO. Each time it’s the patent industry, EPO, lobbyists and certain software firms (mainly Microsoft) claiming that Europe’s small IT firms will die unless they can patent all their work. (The irony is rich but not sweet.)
On the other side, the abolitionists, primarily the FFII and friends in the small IT sector, with little money and just endless sacrifice. Mark Webbink, the former Chief Counsel of Red Hat helped us with a number of initiatives including most vitally the European Patent Conference, which was a series of major events that brought together abolitionists from all sectors, and some very high up. Mark presented the abolitionist case at many conferences. Red Hat joined in many FFII campaigns and workgroups.
In mid-2007 Mark left Red Hat to join the SFLC and in 2008 Rob Tiller took over. From that point, all cooperation with the FFII stopped and my attempts to restart it failed. In a number of key areas, such as a review of the Symbian DLL patent in the UK, Red Hat decided to work alone, ignoring the community.
I can state for the record that Red Hat have not donated a single Euro to the FFII in 2008 or 2009. Yet this is the volunteer organization that was and is most significant in stopping software patents in Europe, the largest economy in the world.
Thus, their claims to be against the software patent system need to be measured against their actual acts. Words are cheap. Deeds and dollars count.
“If Red Hat have filed more patents around it, we know what stripes the tiger is wearing.”So. Facts on the ground. A software firm secretly patents around open standards. Claims patents so it can do deals with other patent holders. Prefers to license patents rather than fight them. Does not fight software patents where it actually could (in Europe). Treats patents as a way of discriminating between FOSS and closed source. Invests in “improving” the patent system by making it cheaper to get more unbreakable software patents.
Red Hat are happy for me to write their code for them. We’ll see how the story with AMQP develops. If Red Hat have filed more patents around it, we know what stripes the tiger is wearing.
In any case the truth will emerge. Either this was a singular mistake by an over-enthusiastic lawyer in Red Hat, and they are fumbling their response; Or it is part of a deliberate move to own AMQP, and there will be more such patents in the pipeline. If it’s a mistake, it’ll all go away. If it’s deliberate, all hell will break loose when the next patent pops. Patents around open standards are a special kind of nasty. █