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Novell, Red Hat, and Software Patents: Strike II

Posted in Microsoft, Novell, Patents, Red Hat at 4:05 am by Dr. Roy Schestowitz

Searching for truth regarding Red Hat and software patents

Summary: Novell’s long tradition of software patenting lives on, but what about Red Hat?

WE already know very well about Novell and its attitude towards software patents. It keeps acquiring them and according to the Salt Lake Tribune it has just gotten some more.

Method and system for dynamic assignment of entitlements, patent No. 7,505,972, invented by Jay Wootton of Lindon, Dennis Foster of Spanish Fork, Joe Skehan of Sandy, Charles Morgan of Springville, Jason Elsberry of Provo, Ryan L. Cox of Provo, William Street of Orem, Stephen R. Carter of Spanish Fork, and Nick Nikols of Draper, assigned to Novell Inc. of Provo.

System and method for filtering of web-based content stored on a proxy cache server, patent No. 7,506,055, invented by Carolyn B. McClain of Springville, and Jim E. Thatcher of Pleasant Grove, assigned to Novell Inc. of Provo.

What we are a little disappointed to see is that Red Hat is not serious about or at least not committed to fighting software patents, so the latest Red Hat kerkuffle is not quite over yet. Red Hat did participate in making the Bilski ruling happen, but the FFII is suggesting that there is conflicting evidence nonetheless (more on that soon).

Pieter Hintjens, the former head of the FFII, has pointed out that the first patent problem was not exactly an isolated incident when he pointed at Slashdot’s direction. It made the front page and Digital Majority covered this too. To summarise:

US Patent 7453593 claims command-line processing by a web server of SOAP requests, resulting in XML responses, from and to a remote client. The HTTP Common Gateway Interface (CGI) operates precisely as described in Claim 1. If you POST a SOAP document and return an XHTML response or a SOAP document, this infringes on Claim 2, since both XHTML and SOAP are XML languages. This patent thus claims to own the processing of SOAP documents by CGI programs.

Some guys from the FFII were preparing some questions for Rob Tiller. He joined Red Hat about a year ago. To quote JupiterMedia: “Red Hat today announced that it had hired Rob Tiller as vice president and assistant general counsel, and Richard Fontana, as open source licensing and patent counsel.”

Pieter attaches some questions (from the above):

I have some questions for Red Hat. Dear Red Hat,

* Why are you filing patents on obvious ideas with ample prior art?

* Will you promise not to sue my clients if they embed my AMQP/XML routing engine in their closed-source applications?

* What if IBM buys Red Hat, as they are buying Sun. Does Red Hat’s patent promise still apply?

* Can you confirm or deny suggestions that the Red Hat patent promise lets Red Hat license it patents to a third party, which can then sue FOSS implementors freely?

* Does Red Hat file patents on business methods (as well as on software algorithms)? If so, does your Promise cover the use of these patents by other FOSS distribution businesses?

Later on, Pieter asked:

Here are my questions to Red Hat’s lawyers:

1. Why are you filing patents on obvious ideas with prior art, like SOAP?

2. If my clients embed my free AMQP/XML engine in their closed apps, are they covered by your Promise?

3. If IBM buys Red Hat, does your Promise still hold?

4. If a 3rd party licenses a patent from you, and then sues my FOSS company, does your Promise still hold?

5. Does Red Hat file business method patents on their software distribution business?

6. If “Yes”, does your Promise protect my FOSS distribution business which uses these patents?

7. Would opposition to a Red Hat patent filing at the USPTO or EPO count as “litigation” under the Promise?

Until the use of Red Hat’s patents against competing FOSS firms and their clients is 100% clear and permanent, then I hold that Red Hat’s patent portfolio is first and foremost aimed at FOSS competitors, and only second at “trolls” and closed source firms.

In other patents news, the so-called 'reform' continues to show its wrinkles.

If Silicon Valley wants help in dealing with the so-called patent troll problem you do not need to limit damages, you just need to fix the problem.

Nothing there addresses the issue of self-defending monopolies which fend off competition. Moreover, this remains a system that punishes those who expose the truth and rewards/bribes those who propagate the great lies about ‘innovation’ and the “small inventor”. Another Internet giant, The Go Daddy Group, has just obtained patents on Web hosting/registration.

Go Daddy gets three new patents, bringing total to five.

The Go Daddy Group, Inc, parent company of domain registrar GoDaddy, has been awarded three new patents this month. Based on a search of “Go Daddy” with the U.S. Patent and Trademark Office, Go Daddy now has five patents. Its previously issued patents include one for private domain registration (whois privacy) and a server based spam filter.

Who does this system actually serve? It merely protects those who are wealthy enough to be able to afford patents. When it comes to software that respects people’s freedom, it even illegalises it. This helps not at all when O’Reilly publishes a book with the vague/broad title “Intellectual Property and Open Source”; there is now an excerpt from it online. If it’s patents, then call it “patents” and if it’s about copyrights, then be it “copyrights”. To say “intellectual property” is like calling Switzerland “Europe” and arguing that Europe is a land of mountains (never mind if Belgium and Holland hardly have any).

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  1. JohnD said,

    March 22, 2009 at 10:01 am


    Acquiring a patent isn’t the same as using against someone. I’m guessing Novell has dozens if not hundreds of patents – how many times have they sued FOSS for patent infringement.
    If Novell has the patent, it means M$ doesn’t – which is good in my opinion. Hopefully the goal of the acquisitions is donation to OIN.
    Only time will tell.

  2. Roy Schestowitz said,

    March 22, 2009 at 11:14 am


    If IBM or Microsoft bought Novell along with its patents, then what good would Novell’s promises and obligations be? UNIX counts too.

  3. JohnD said,

    March 22, 2009 at 11:35 am


    I see your point, but how realistic are either of those situations?
    M$ has already been nailed as a monopoly, I doubt antitrust regulators would allow them to buy a major firm like Novell especially given it’s presence in the server rooms and on desktops. One of the popular theories is that M$ is propping up Novell in an effort to avoid antitrust issues – buying the company would defeat that purpose.
    People are already questioning if IBM/SUN could past antitrust muster and that’s just on the server hardware/Unix end of things.
    One would hope that any donations to OIN are permanent so if Novell does donate it’s a done deal.
    I still think one of the best moves Novell could make is to just buyout SCO then they could donate Unix IP to FOSS and begin a merge of Unix and Linux. You’d be looking at more serious market share if that happens.

  4. Roy Schestowitz said,

    March 22, 2009 at 11:56 am


    It would not be of much use. Besides, not only Microsoft is a potential acquirer.

  5. Jose_X said,

    March 22, 2009 at 4:47 pm


    I’m assuming a patent could be encumbered for all time by its owner, right (like giving the public certain rights)? An example might be that patent X can be used only for Y purpose and all other rights are given up (to the public). I understand why people would hesitate to make that decision today without knowledge of future threats or risking wording the encumbrance incorrectly. It might make more sense to donate it to a not-for-profit group that would have to work within predefined but more flexible boundaries.

  6. JohnD said,

    March 23, 2009 at 7:43 am


    I would think that the owner has the ability to change the public’s rights to the patent at anytime – a perk of ownership. Kind of like owning a car. I could restrict it’s use for certain tasks and leave the rest up to the end users, but at the end of the day my name is on the title so I have the final say.
    It is my hope that Novell will donate what patents it can to OIN especially since I doubt the patent system will be fixed anytime soon. I think the only near term fix will be for the public to decide what kind of software is best for them. Hopefully the migration away from Windows will continue.

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