12.13.10

Red Hat Pushes for Patent Reform While Microsoft Patent Trolls Are Suing, Sometimes Losing

Posted in Microsoft, Patents, Red Hat at 6:38 am by Dr. Roy Schestowitz

Summary: As expected, Microsoft offsprings (sometimes offshoots funded by Microsoft) go after Microsoft’s competitors using software patents while Linux leader Red Hat asks SCOTUS for help

FREE software faces some obstacles due to patent trolls, who statistically thrive in software patents. Microsoft recently got a deal with Acacia and ACCESS [1, 2, 3, 4], just around the same time that Red Hat signed an NDA with Acacia, as last mentioned in here (Spanish version also available).

In order to harm Free software Microsoft needs only to elevate its cost, which harms redistribution rights. The NDA with Red Hat is quite likely to have been such a case and given Microsoft’s connections with Acacia, this oughtn’t be ignored.

“Red Hat Joins Brief Filed with U.S. Supreme Court Opposing Expansion of Standard for Inducing Patent Infringement” says this new page adjacent to a press release which was followed by some press coverage:

Tuesday, Red Hat, Inc. (RHT), the world’s largest seller of linux software, said it has joined a writ filed with the U.S. Supreme Court seeking correction of the standard for abetting patent infringements.

[...]

Rob Tiller, Red Hat’s assistant general counsel for IP, said the problems of bad software patents is aggravated by the Federal Court’s decision.

More press coverage can be found in the press near Red Hat’s headquarters/centre of operation (which is reportedly going to move, maybe even outside the United States where software patents are out of control). “Red Hat joins battle against patent case at Supreme Court” says this headline.

Red Hat (NYSE: RHT) and several other technology firms have weighed into a Supreme Court battle over a lower court ruling that they believe “threatens to expand patent litigation.”

The “friend of the court” brief argues that parties with direct knowledge of a “specific patent at issue and covers the alleged infringing activity” are liable.

It is possible that after the i4i case escalating to a decision in SCOTUS there will no longer be a great threat to Red Hat’s business. There is also the Research Corp. v. Microsoft case which Patenly-O reports on:

There are three articulated exceptions to the scope of patentable subject matter under 35 U.S.C. § 101: laws of nature, physical phenomena, and abstract ideas. Research Corp. v. Microsoft places a high hurdle in front of challengers who seek to invalidate process patents on the third ground.

As we stressed last week, Microsoft is running out of viable products and it is increasingly becoming a patent troll in some areas of operation. Extensive use of patents is a symptom of dying companies and Nortel is the latest example of this. Previous examples were Sun and Novell. Even “Kodak becomes a patent troll” according to the FFII’s president’s interpretation of this article. We wrote about Kodak in the context of patents several times before [1, 2, 3, 4]. Companies turn to patents only when they lose. Watch Rambus getting called a “troll” for example:

PATENT TROLL Rambus has leveled a fresh complaint against its competitors.

For background also see [1, 2, 3, 4, 5, 6, 7, 8, 9].

It is important to remember that Microsoft need not sue its rivals for alleged patent violations directly. Microsoft is breeding major patent trolls, including Traul Allen with Interval, which allegedly got its lawsuit against the entire industry (except Microsoft) dismissed. [via]

Paul Allen’s patent infringement complaint against the world and its dog has been dismissed.

The court agreed with Google et al that it “lacks adequate factual detail to satisfy the dictates of Twombly and Iqbal” and also “fails to provide sufficient factual detail as suggested by Form 18″. The court doesn’t agree with Allen’s Interval Licensing that the two cases do not apply to patent complaints, but it doesn’t even need to go there: “The Court does not find it necessary to determine whether Form 18 is no longer adequate under Twombly and Iqbal because Plaintiff’s complaint fails to satisfy either the Supreme Court’s interpretation of Rule 8 or Form 18.”

Pamela Jones seems like the only person to have reached this conclusion, which Glyn Moody doubts due to insufficient evidence. Groklaw also said that SCO was over on many occasions since 2007, but when Jones said so she did not mean it in the technical sense. “Merry Troll Christmas, legal eagles,” she exclaims regarding the Traul Allen case. We shall wait and see if the corporate news can confirm this.

In other news, Slashdot’s summary says that Microsoft’s “World’s Largest Patent Troll Fires First Salvo”:

“Yesterday the biggest software patent troll of all finally woke from its slumbers: Intellectual Ventures filed patent infringement complaints in the US District Court of Delaware against companies in the software security, DRAM and Flash memory, and field-programmable gate array industries. Intellectual Ventures was co-founded by Microsoft’s former CTO Nathan Myhrvold, with others from Intel and a Seattle-based law firm.”

We wrote about it some days ago and so did Jones, who added: “What a surprise. Microsoft competitors getting knee capped.” It is now covered in very many sites, e.g. [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11]. Well, ‘companies’ like that should not be allowed to exist in a sane system so “to Übertroll Intellectual Ventures,” writes Glyn Moody, “I say: bring it on”. He hopes they’ll show how broken the system really is:

This harping on “invention” and “innovation” is rather misleading. As far as I can tell, it doesn’t really invent anything for the purpose of commercialisation, manufacture or sale: it just comes up with ideas and applies for patents on them (or buys patents from others). Its business model is founded on amassing a huge collection of patents, and then getting companies to licence them – whether they want to or not – because their inventions are or may be “infringing” according to Intellectual Ventures.

It’s clear from this that the real invention is done by other companies who devise things they want to sell; IV, by contrast, thrives by exacting a tax on innovation done elsewhere. It can do that because of the flawed US patent system, which does not allow independent invention as a defence against allegations of infringement. That is, even though you provably didn’t “steal” another company’s idea, but came up with it on your own, if someone else patented it – or something similar enough – first you still have to pay for the “right” to use your own invention.

Of course, this is absurd: the whole premise of the patent system is that it should encourage as many people as possible to innovate, but this aspect actually punishes it, because it makes independent research vulnerable to this kind of penalty. That means companies will be less inclined to invest in research if they think there’s a chance they may get scooped in filing for the result – something that’s hard to tell in advance. Moreover, with the growth of ever-vaster patent thickets, it is increasingly difficult to come up with any new product that does not touch on one or more existing patents, especially when they are framed as vaguely as possible precisely for that purpose.

What makes Intellectual Ventures different from all the other patent trolls that live off others’ work is the scale of its operations. Nobody really knows the extent of its holdings, but the consensus is that we are talking about over 30,000 patents – an extraordinary number of government-granted intellectual monopolies.

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I do so, because it could well be the coup de grace for the dysfunctional US patent edifice, already tottering. It would cause so many companies to turn against Intellectual Ventures, and rightly to blame the patent system that allows IV to exist, that real reform might at last be possible.

Facebook’s founder was reportedly hanging out with Intellectual Ventures’ founder whilst also buying extra patents from dead/dying companies and using software patents aggressively. Now that Facebook is being sued for patent infringement (again) it deserves no sympathy.