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10.03.10

Details Needed About New Red Hat-Acacia Patent Settlement (Updated)

Posted in GNU/Linux, Microsoft, Patents, Red Hat at 7:29 am by Dr. Roy Schestowitz

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Summary: A surprising statement from patent troll Acacia/Software Tree LLC, regarding an alleged settlement with Red Hat

THERE IS something a tad mysterious going on and we covered it yesterday in IRC. Basically, an Acacia patent is said to have been invalidated after maybe millions were spent on pointless litigation. Acacia is a patent troll with Microsoft connections (former Microsoft staff and Microsoft settlement money in its coffers, as shown succinctly in our wiki) and yesterday we found this isolated press release in Google News. It says “Acacia subsidiary Software Tree settles patent litigation with Red Hat” and there is no other coverage of it, so we sent a question to Red Hat.

Acacia Research Corporation (NASDAQ: ACTG | PowerRating) announced today that Software Tree LLC, an Acacia subsidiary, has entered into a settlement agreement with Red Hat Inc relating to patent litigation involving Software Tree technology for systems and methods or exchanging data and commands between an object oriented system and a relational system.

“Acacia sued RH,” asked one of our readers later in the day and the Microsoft mobbyists [sic] already use this to throw FUD at GNU/Linux. Let’s wait until Red Hat clarifies before jumping to any hasty conclusions.

Update: “data_provider” says: “oiaohm gave you link to wrong Acacia suit again[s]t redhat. The one you want is: http://dockets.justia.com/docket/texas/txedce/6:2009cv00097/114766/

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18 Comments

  1. twitter said,

    October 3, 2010 at 11:33 am

    Gravatar

    Hopefully, “settled” means that Acacia was forced to pay RH’s litigation costs and agreed to walk away with their tail between their legs.

    Dr. Roy Schestowitz Reply:

    Why would Red Hat not be the one to comment? As I said, the Microsoft mobbyists take advantage of uncertainty and write things like:

    “Red Hat probably pays patent royalties to Acacia http://bit.ly/cSb22p + hush $ due to free-software-must-not-pay ideology.”

    “I can’t imagine this non-practicing entity would have let Red Hat off the hook without paying http://bit.ly/cSb22p #patent”

    “@Pandersonpllc OK, so “doubtful” meant that you agree with me Red Hat will have paid, otherwise the NPE would’ve continued to litigate?”

    “On Red Hat patent settlement announcement (http://bit.ly/cSb22p), I share assessment with @Pandersonpllc that $RHT will have paid for sure.”

    “@Pandersonpllc Went through reexam or 2 means it survived attempts at invalidation? Or did one of the processes look like they were losing?”

    Jose_X Reply:

    If this person is wrong, are they ever going to show their fa.. …name again? Don’t pay attention to anonymous and such comments that don’t provide substance but only mere guesses and FUD.

    Red Hat might not be willing to spend all of that money again, but the troll might realize they have a good chance to lose their money-maker if they tango with the wider community. Also, Red Hat might be ready to push through to the SCOTUS a serious question of promoting the progress or some other deficiency in the patent system (there are many, including the costs to prove prior art existed and the difficulty in identifying problems ahead of time because of the vast number of patents (they wrote about this to the USPTO). Also, in the end, open source might even get a free pass. Of course, I suspect the patents the troll has are abstract and the troll knows there is a very good chance they will lose it way before Red Hat spends near 3 million. Remember that Red Hat fought and won the last battle essentially pre-Bilski ruling. Red Hat knows the score and is likely not shy about letting the troll know.

    It’s also possible Red Hat paid some money in order to get a deal that a bunch of other trolls will not waste time with Red Hat for the next say 5 years.

    Look, since Bilski, the people wanting software patent royalties are running on borrowed time and the best move is to spend their time with weak preys (companies that can’t afford to fight in court or aren’t as backed by a community or as determined not to pay up to patents as is Red Hat).

    Red Hat is the one with the winning record and software patents are an endangered species. Why spend time against them? Why anger them? Why have them take all of your software patents and ask the USPTO for a re-evaluation, especially given how many people argued against sw patents with backing from Bilski when the USPTO asked for public comments.

    These people spreading FUD might know (or guess) that an NDA is in place and want to take cheap hits the only way they can make Microsoft FUD appear realistic. In any case, whether Red Hat did something like the above or not at all, trolls will have a hard time if they keep picking on open source since that is a direct attack on the freedom of every single juryperson hearing the case. Many juries will recognize the problems with that (eg, that much more likely not to promote the progress and pick on the public’s free stuff). Plus, trolls only make money from successes. Lose their patents and millions and they turn potential easy money (in settlements) into significant debt.

    Dr. Roy Schestowitz Reply:

    These people spreading FUD might know (or guess) that an NDA is in place and want to take cheap hits the only way they can make Microsoft FUD appear realistic.

    I suspect that all of these quotes were also posted from someone on Microsoft’s payroll. They are from the same person who refuses to deny this financial connection (having been asked about it like a dozen times). His career is in lobbying/mobbying.

    Jose_X Reply:

    Think about it. Would you as a troll want to go against a company with limited lawyers and funds and experience about what is a software patent, or do you want to forgo your time going after these companies to instead tango with a company more than willing to go the 12 rounds though very likely to win way before then with a knock-out punch (and perhaps a knock-out against more than just the patents you specified in that lawsuit)?

    And do you want to go up against the ideas, experiences, and volunteer time of at least hundreds of knowledgeable people who really dislike patents and who already hold the moral high ground?

    PJ from groklaw has shown she is committed to helping Red Hat and companies in similar position, and the legal/software community of readers definitely is stepping up to the plate with her. [BTW, of course, Red Hat has talented lawyers and sw devs, but they know there is no contest against the wide community. This is why since day one they have decided to contribute and be a member in good standing.]

    Dr. Roy Schestowitz Reply:

    It would be perfect if Red Hat stopped applying for software patents too.

    Jose_X Reply:

    I agree that the more of these get taken out, the more potential problems later.

    The good news is that even Red Hat’s own patents are likely even less useful to them today (or harmful). I understand they have stockholders, and the patents give them leverage against large patent holders (and producers). They support open source, and, in the context of today’s/yesterday’s patent environment, a few patents might help them out for defensive reasons.

    What Red Hat has done is to take away the threat of them using it offensively against open source. They could go further by actually implementing them in GPL code (Bruce Perens mentioned this as a comment on the opensource blog).

    If Red Hat survives, they appear to be no threat. Perhaps Red Hat sees the patents as extra insurance so that the community will want to keep Red Hat around in one piece because they behave very decently as a co (help take Linux to many areas as a professional and open product, contribute open code and open models, fight and win against sw patents, write briefs against the problems of sw patents, etc) and we would prefer not to see someone else end up owning Red Hat patents.

    By owning and producing patents, they gain some extra credibility in some sectors. I think we can criticize them, but they are a net asset, even in the patent domain, never mind in other open source areas.

    Dr. Roy Schestowitz Reply:

    The problem is different and I debated this with Red Hat’s legal staff when SAP acquisition rumours were spreading. If someone buys Red Hat, that someone can do to GNU/Linux what Oracle did to Java/Dalvik after it bought Sun.

    gnufreex Reply:

    >If someone buys Red Hat, that someone can do to GNU/Linux what Oracle did to Java/Dalvik after it bought Sun.

    No they can’t. The analogy would go: “they could do to FreeBSD same that Oracle did to Dalvik”.

    Simple explanation: Dalvik is under diferent license than OpenJDK, and it is a clone. Linux is under same license as.. well… Linux. And that License has patent grant.

    Dr. Roy Schestowitz Reply:

    Linux was just one example. Red Hat patents can be (mis)used in other ways.

  2. Jose_X said,

    October 3, 2010 at 4:23 pm

    Gravatar

    http://www.freepatentsonline.com/6163776.html

    Just started reading the claims and they look about as abstract as abstract gets (within the context of Bilski). This is close to a pure patent on software abstractions.

    What is an “object relational mapping data structure?” What is an “object-oriented system?” What is a “mapping unit?” What is an “object call processing unit?” What is a “database interface unit?” What is an “object class definition?” What is a “table” belonging to a relational system?

    Can I see or touch any of these things? Are these machines? Do these have anything to do with the general computing machine based server Red Hat services?

    No, these are all abstract entities that are common tools of many software developers. These turn into information that a physical machine then processes (like a calculator processing a new set of calculations so that the human doesn’t have to do so). There is not particular and novel (or either) machine being claimed. There is no industrial process. The machine-or-transformation test fails and the court has never looked at an example of a patent that failed that test yet merited a patent in their eyes.

    All that is being claimed are very questionably non-obvious ideas to a person having ordinary skill in the art in 1998.

    Red Hat won before on a much older patent and using numerous examples of prior art. I expect there is prior art people will remember for this much later patent, but more importantly, State Street is dead and this patent is in many ways as abstract as Bilski if not even more so.

    I don’t think the USPTO is giving out patents today on that kind of junk (or at least not except with scope limited to actual machine hardware implementations). I also think there is a good chance the USPTO would cancel the patent on a re-eval.

    I think (but not sure) that pre-Bilski, you would even have had more success with a software patent on a method than as a machine. At least this would be the case if you wanted to attack a software house like is Red Hat.

    I think the patent troll would do well to pay Red Hat so that Red Hat does not disclose the terms of the agreement and does not challenge the patent.

    I did read the press release, and the “sound of it” is that the patent troll got Red Hat to settle. Like I said, looking a bit at their patent claims, I think Red Hat (with the support of the court and/or USPTO) would/should dispatch with the troll in short time. And the troll, most likely, wouldn’t get money and would spend money and time until the very end after all appeals, including potentially to the SCOTUS.

    Jose_X Reply:

    .. .and they would lose.

    Jose_X Reply:

    btw, claiming what they did as a machine probably has more chance not to get rejected by the USPTO than as a generic method; however, a machine would not be a threat to Red Hat and Red Hat can likely find prior art in either case. So add the risk that this patent would still be considered abstract since there is no transformation of matter, etc, and I think it’s almost too too likely that the troll would pay to bail out in one piece.. just as twitter stated up at the top, except that they are probably paying extra so that they can wag their physical tail around to hide their insecurity.

    Jose_X Reply:

    Oh, forgot, they do claim methods, in fact, quite a few of them.

    I guess we now know this troll will come after us if we build a certain type of general “data structure” out in the backyard (claim 1) or perhaps try to use our lawn mower to generate other “data structures” using the steps mentioned in claim 16 (or other claims).

    Dr. Roy Schestowitz Reply:

    It’s just a recipe then. They should use copyrights, not patents.

    Dr. Roy Schestowitz Reply:

    It seems to be like only the offender tells its side here.

    Jose_X Reply:

    I think you meant “offender”.

    In any case, I will help the other side a little.

    Maybe this patent is over something that got put in say some API (maybe a Java API of some sort), and Red Hat might agree that some of the more precise claims might not have easy to prove prior art.

    However, as I stated before….

    [If I come up with any other bit that might help the troll's cheering corner, I'll consider posting.]

    Dr. Roy Schestowitz Reply:

    I should add that the cheering adds to my suspicion that Acacia does this for Microsoft, to a certain degree (Acacia got Microsoft money and staff and it attacked just days after Ballmer had warned about it and very senior staff came to Acacia from Microsoft).

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