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.”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.
“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.
“...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. ⬆
Comments
Friend
2009-03-18 14:58:15
Redhat already killed the spirit of free software. Its just another big business now...
Archit Shah
2009-03-19 01:51:42
Pieter claims that "Red Hat, instead of competing on quality, seem to be taking the same patent FUD route of other firms." Give me an example. If actions speak louder than words, let us where Red Hat has taken this route.
Instead, Pieter has taken the route of spreading fear, uncertainty and doubt. He claims that Red Hat's patent is only good for malicious acts. A defensive patent is one that can be enforced against third parties that threaten implementations of the AMQP specification with their patents. This patent does not merely serve as a prior art reference, it is also a weapon that can deter patent suits. AMQP implementers and open source software have nothing to fear.
Jose_X
2009-03-19 04:42:22
Let me take this opportunity to encourage Novell once again to dump the Microsoft's Fake Second Source business segment and otherwise giving Microsoft a helping hand. The patent dangers of cloning Microsoft are also still a very serious threat today: http://boycottnovell.com/2009/02/04/the-api-trap-part-1/
Jose_X
2009-03-19 05:57:04
>> 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.
Makes sense to me (assuming it's honest).
You defend against a troll by getting to something before they do.
>> 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.
And you can show how broken the system is because the patent would be accepted despite the very good points you mentioned.
>> 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
I can understand FOSS being upset at patent attacks, after all, look at what they do to promote the progress of the sciences and useful arts, but closed source software doesn't do nearly as much.
I think everyone needs to fight the patent system. So that Red Hat is not a threat. So that no one is a threat. Software patents make no sense. I'm working on a long list of arguments why that is so (maybe, I'll have something to contribute that is extra). The loophole Red Hat is exploiting is the one that can exist around any standard. At least Red Hat is on FOSS' side -- they depend on it. Microsoft+PartnerTrolls are not so generous to FOSS around obvious extensions to dotnet, for example.
We need to end software patents (except at most under very limited conditions, should it be proven that the sciences and useful arts are not hurt within the given economic/social/technical context, eg, FOSS scenario).
We need to end software patents! They are broken.
We need to end software patents!
We need a major webpage making it clear software patents are a broken concept at least under today's context. This page may already exist (btw, anyone have a link?)
>> 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.
If you are going to play the patent game, that's like going into battle with a shield but no sword. For your own health, you have to bring sword.
If patents were automatic, as is copyright, then prior art would serve as a patent in its own right. The patent system was not created to address the needs of $0 manufacturing, distribution, R&D, etc, models where existing extreme openness already promotes the sciences and useful arts tremendously. Many inventors today (for software) can help build, distribute, etc their entire invention in less time and cost than it takes to manage a patent application.
>> Neither of these two scenarios helps AMQP, neither helps FOSS implementers of AMQP, and neither helps the FOSS community.
You may be correct, especially now with the cat out of the bag.
Then again, if FOSS adopts AMQP, that would put some pressure on the industry to follow. FOSS devs can use their own standards. FOSS is open. It's easy to interoperate with FOSS and consequently with FOSS standards. Generally, open standards don't resolve bugs and imperfections in the standard; however, FOSS shows everything so that interop can always be achieved. I have greater faith in open standards that are closely linked to FOSS than those that are not. Thus if FOSS devs adopt AMQP, it will help AMQP adoption in a number of significant ways (a safe standard.. if Red Hat is not attacked.. FOSS is available to all). And FOSS devs might do so if they feel safer because of Red Hat's move.
If Red Hat sells that patent, however, that means another nuke was put out there. Not sure what the consequences of that would be in the big picture except to provide yet more evidence of how unworkable software patents are.
>> I’ll defend the right of closed source firms to compete, free of software patents.
Red Hat has just put some pressure, on behalf of FOSS, to get more closed source vendors to fight patents.
Red Hat might not want patents stopped. I'm arguing on their behalf as if they do/will.
In any case, this action helps strike some balance. Everyone needs to work to have software patents neutered.
>> 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.
This is the real part of concern. However, I'll repeat, having FOSS and not proprietary protected is a welcomed move so long as software patents are a menace generally.
Closed source has extra leverage. It can easily lead to greater markup, a portion of which can fulfill patent royalty requirements. This isn't to say software patents are Constitutional, but that at least it makes more sense to give socially friendly FOSS a free pass.
>> 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.
Pieter, you bring valuable information forward. Keep in mind though that *if* Red Hat is working to help the situation, then dollars they spend doing this contributes to the overall effort.
>> If Red Hat have filed more patents around it, we know what stripes the tiger is wearing.
No, I expect they have, but don't yet see this as an extra liability.
I actually considered suggesting that legal patent case defenses be undertaken with the community's help (think groklaw) and that such methods be patented to the extent they can be .. to prove how detrimental the law is. [I know there is the Bilski "machine" issue; but we will see.]
Also, "software patents" work as hardware patents (or can). At this point in time, hardware is still something outside the capabilities of small firms and inventors. Patents in those areas have more arguable benefits to the wider society (for starters, they would directly abridge the freedoms of many fewer people).
>> Patents around open standards are a special kind of nasty.
And, amazingly, allowed in the US as Rambus demonstrated.
The law is broken (putting Bilski aside), at least wrt software patents. The machine requirement of Bilski needs to be made so that you would be building a new and unadjustable machine, at least so that this "machine" req wouldn't be bypassed easily to effectively allow the patenting of software.
saulgoode
2009-03-19 09:13:31
Jose_X, if you feel Red Hat holding a defensive patent is such a good thing for Free Software, would you then be opposed to challenges being made to the patent application? If the SFLC or FFII were to protest this patent's application, on which side would your sympathies lie? (rhetorical question, not intended to doubt your veracity)
Unless the intent here is for Red Hat to protest their own patent application, or underwrite such a challenge by a third party (per 37 CFR 1.291) -- presumedly premised upon the re:Bilski precedent calling into question the validity of software patents.
Roy Schestowitz
2009-03-19 09:24:13
Don't forget what happened to MySQL when Sun bought them.
Pieter Hintjens
2009-03-19 09:28:22
Thanks for your comments. There are two points I'd like to take in more detail.
First, the frequent assertion that a patent is more powerful, in a fight, than prior art.
Second, the assertion that open source is special somehow, when it comes to patents.
Patents vs. prior art. "We need a patent to defend against the trolls". It sounds fine. But it only works if the audience is ignorant of how a patent works.
Let me define what a patent (software, hardware, business method) is. It is a legal instrument that lets you prevent competition in some area of the market, as defined by the claims. That's it. A patent is a tool for stopping other people from doing business.
Please think about this for a second. A patent cannot defend against another patent. That is fantasy. A patent can threaten someone else, and if that person is also threatening you, it may help to come to a peaceful deal.
And in fact the only situation where a "portfolio" of patents, a nice name for what is in fact a roomful of weapons, can be useful is in (a) building a licensing business, basically a form of extortion, or (b) swapping with other big firms, basically a form of cartel building.
Now please tell me whether I've missed something here, and provide examples. I'll provide examples: IBM goes around software firms saying "pay us $$$M because you infringe on our patents". The telecoms industry is based on patent pools and swaps.
In both cases, small firms are excluded. Now, to say this is "to defend FOSS" is kind of freaky. The only specific case where patents are lined up to defend FOSS is OIN, specifically designed to defend Linux. And look how well that is working for TomTom.
TomTom, by the way, is a typical small innovator being destroyed by patent litigation. They have patents too. It is not helping.
Patents, thus, are never defensive. If the point of acquiring a patent is to prevent someone else taking the same patent, then it's like saying, "I bought that gun to prevent my neighbour from buying it". First, there are lots of guns, and infinitely many patents You can seriously damage the scope for a patent by publishing, in less or more formal ways.
This is how iMatix does it. When we have new designs, we publish them as specifications, on a public wiki like http://wiki.amqp.org, where they are time-stamped, and where the license from the start says who can use the designs, and how.
That is sufficient to defuse a patent, especially for a firm with lawyers and money to attack bogus patents. Little firms like iMatix would be helpless if someone did in fact patent our work and then sue us. Red Hat? Not.
Second point. The FFII, from the start, understood and taught that software patents are harmful to all software developers, closed and open. Further, that these two groups are not separate tribes but just cousins living in the same village. What harms one, harms the other.
But more importantly: software is a layer cake and even if your business runs on Linux, Apache, PHP, MySQL, there is a good chance that your website and database applications are not open source. People do not publish the code that creates their business advantage. And when it comes to patent lawsuits, it's the businesses that use software who are sued more than those who make it.
So software patents which "do not affect FOSS" are like guns that will not shoot you below the belt. OK, free software developers (again, as someone who's been writing free software since 1991, I need to point out that volunteer software developers make the meat that Red Hat repackages) are safe. Their clients are not. Red Hat's clients are... and this should be ringing warning bells for anyone watching Red Hat's patenting strategy.
If you write free software, Red Hat will not sue you. If you are a user of free software and you infringe on a Red Hat patent, presumably you need to buy a license. Thus Red Hat's patents, their promise, and their investments in OIN, would seem to be about keeping competitors away from their growing and lucrative business.
I would do the same if I was Red Hat. They have investors and shareholders to reward. They are a business.
However, a business that uses the patent system for its own profit really cannot claim the high ground. Software patents destroy. The patent system destroys. When someone buys guns, they become part of the gun economy. When a firm buys patents (and Red Hat buys a lot of them), it supports, endorses, and finally will protect and invest in, the patent economy.
So, I've been reading some other Red Hat patents and I see they have patents on business methods such as how to offer multiple support options (USPTO patent #20090063175).
Business method patents? What next?
Roy Schestowitz
2009-03-19 09:44:53
saulgoode
2009-03-19 09:58:54
Pieter Hintjens
2009-03-19 09:59:05
I'm pretty sure that says "Customer number with RedHat" and that the "inventor"* is the same Jason Hibbets who is the project manager for Red Hat Knowledgebase.
http://www.redhat.com/magazine/014dec05/departments/red_hat_speaks/
* It is easier to understand how old and clever the patent system is, if you mentally replace "invention" with "patent", and "inventor" with "guy who helped attorney write patent". Who would not promote a system that produced more "inventions" and rewarded "inventors"?
Roy Schestowitz
2009-03-19 10:01:28
Pieter Hintjens
2009-03-19 10:35:59
It's the old myth that the patent system rewards the "small inventor", some geeky engineer working in his garage to find the cure for cancer. The patent industry spends loads on marketing this, with events like "Inventor days", and they love to point to amazing inventions that happened thanks to the grace of the patent system. When in fact most major inventions, like the steam engine or aeroplane, were the focus of amazing patent disputes that stopped all progress for decades, in cases.
The patent system has always, since its inception, favoured the rich and powerful. And the rich and powerful always fought the patent system when they were poor and weak, and turned to love it as they grew in power.
Problem for a large firm is that they get less efficient as they grow. So eventually they come to hate competition and the patent system is one of the best tools to beat down the little guys.
This is where I think Red Hat finds itself: too large to compete without resorting to protectionism. The irony is that when Microsoft joined the AMQP working group, Red Hat trumpeted how this would prevent them (Microsoft) from patenting AMQP.
I note that nowhere does Red Hat promise not to sue users.
Important to note that if you use a piece of software that reads on a certain patent, you as user are the infringer, and liable. According to Red Hat's promise and the AMQP agreements, implementers will not be sued.
But anyone using a competing product will be open to being sued. Not that you would ever, ever actually see a lawsuit. Large firms just settle, without discussion.
And all this happens privately, in meetings between sales teams and company boards. It's secret, invisible, but you can be 100% sure that if a sales team can pull out the "oh, and we have a patent on it" argument, and lock up their annual bonuses, they will do it.
This in effect allows Red Hat to control the distribution of that FOSS software they promise not to sue.
Dan O'Brian
2009-03-19 12:26:58
Shane Coyle
2009-03-19 18:31:10
Gordon Sim
2009-03-19 20:29:34
Demonstrably false, look at the commit logs for the apache qpid project from 2006 to the present (which was then in the incubator).
"they told no-one about it."
Again, not true. The chair of the AMQP WG was informed that the patent was being filed.
"We’ve seen some outright lies from Red Hat about AMQP — including one press release where they claimed to have invented it"
No, that was an inaccurate article by an independent reporter following their interview of some Red Hat employees and Red Hat explained that to the WG when the incident occured. Red Hat have never claimed to have invented AMQP.
When accusing others of 'outright lies' it is important to ensure the veracity of your own remarks.
Pieter Hintjens
2009-03-19 20:52:00
Thanks for the corrections. Sorry for these factual errors. Indeed, the Chair informed us he'd been told about the patent but had forgotten about it. As far as I know no-one else in the AMQP group knew about it, but this is obviously unprovable.
Here is that interview: http://news.cnet.com/8301-13580_3-9818217-39.html?tag=nefd.top
I quote from the article:
"Indeed, Red Hat's APQM began its life as proprietary messaging software at financial services giant JP Morgan Chase, said Red Hat Chief Technology Officer Brian Stevens in an interview here during Oracle OpenWorld."
and
"After acquiring the JP Morgan Chase software, Red Hat made it into an open-source project called Qpid at the Apache Software Foundation, hired programmers to improve it, and joined with networking giant Cisco Systems to try to make the software's mechanisms an industry standard called AMQP, or Advanced Message Queuing Protocol."
and
"Several others are joining Red Hat and Cisco in working to make AMQP a standard. Among them are Novell, Credit Suisse, Deutsche Boerse Systems, Goldman Sachs, Iona Technologies, and 29West Inc "
So perhaps it was indeed a confused reporter, or perhaps he was indeed quoting Red Hat. As a reader, I assume the latter and the text is quite clear. Red Hat appears to be claiming they acquired some magic technology from JPMorganChase, then open sourced it, and together with Cisco and other folk (note, not RabbitMQ, not iMatix), formed the workgroup.
Either the reporter was very coherent in his mistake, or he was quoting what he'd been told.
That interview counts, for me, as a set of outright lies mixed with truths.
Gordon Sim
2009-03-20 10:32:25
As I said, I am offering no comment on your general point regarding patents, the (in)appropriateness of their use as a defence etc.
I am simply saying that the whole tone of the post is coloured by unfair and false remarks that degrade it from being a rational incisive commentary to being an irrational and vindictive attack.
I am _not_ defending my employer. I am defending a tradition of fair, and respectful debate that furthers collective understanding.
--Gordon
Jose_X
2009-03-20 03:13:17
Pieter, I very very lightly skimmed a part of your comment to me and I didn't see anything I disagreed with.
saulgoode, there may exist some, but for the most part I don't think I have seen a patent I would defend to be granted monopoly or forced royalty status (maybe a token year or two max.. iffy).. An alternative would be to have the government build up a limited fund from which the much smaller number of granted "patent-ish" might fight with each other for prizes/royalties. There are other alternatives. [You'd securitize various revenue streams.]
However, I don't want to focus on attacking companies that provide some sort of balance and a company whose FOSS goals I think I largely agree with. Unlike the MS-Novell deal, Red Hat appears to be willing to use these patents (maybe only as a threat) to *help* FOSS rather than to hurt it... to give it a better footing and put some pressure on closed source. In fact, there are two things I can think of now that might stop a "copyleft" patent version of the GPL from coming about. One is that patents are expensive and not automatic. This is at best "maybe OK" when you truly seek some protection to develop a high cost manufacturing process in a slow moving field. Without this automatic protection, the playing field is very much against the small software inventors (you and me) and a PatentGPL becomes unachievable in purpose/practice. Second, the patent scopes are allowed to be quite broad. It truly is ridiculous. However, this second point, combined with auto patents would quickly lead to patents becoming de facto useless (DAMNMAD) as the only practical alternative to avoid bringing the economy to its knees.
In short, my position remains to make sure an extensive set of public arguments/reasons are put up where everyone can see the ridiculousness of patents and how they might be affected and can contribute. This would make it very likely that everyone attacked would have a large bag from which to draw in order to make every single patent case a potential Unconstutionality battle. However, I don't want to attack Red Hat now when their patents may actually help FOSS short term and maybe even help abolish patents (see last paragraph). There are many worse patents and patent owners than Red Hat to challenge for those that want to spend time/effort challenging patents.
Pieter, I won't tell you what to do. I'll just say that everything bad that comes from patents, anyone's patents, should be recorded and used to end this madness.
Now, I used the shield and sword analogy for a simple reason. It's much more costly to fight every single patent attack by trying to show prior art (and it's very risky and, worst, you may not even have prior art), than it is to use a MAD tactic (you need a sword). In particular, if trolls attack *FOSS*, I could sell my patents to another troll to go after key points in the economy to help make the disruption loud and clear. Think of child or spousal abuse. Only when someone makes a lot of noise, is the obvious injustice dealt with nationally. Until we make a lot of noise (think Blackberry but over and over), the system is going to continue to stay silent and pretend any particular battle was just another court battle between big bad corporations or a battle where we are to support the patent system by routing for the David going up against the Goliath.
Personally, I hope FOSS advocates consider the potential short-term positives and balance Red Hat's patent promises represent and try to use someone else as an example. However, if Red Hat were not to mind and if the battle wouldn't be too costly....
[I really need to put up a list of arguments/ examples I have been slowly building (plus those used by others). Someone want to take the initiative in such a drive since I keep stalling? ..though perhaps there is already a good piece of public work started. The deal would be not to argue a specific or very limited set of consistent points exclusively but help advance many arguments in parallel. Eg, you want those that want to abolish all patents to present their case as well as those that want to keep some types of patents around.. ditto for copyrights, etc. We can all critique each other's position. We want to critique harshly. Let's have this conversation out in public since the result of these court battles being argued by a limited few have vast implications for everyone.]
Pieter Hintjens
2009-03-20 10:22:08
You are ignoring or dismissing the pertinent facts, namely that Red Hat did this in secret (they told the Chair they would patent XQuery, not AMQP, and it was an informal verbal discussion); that patents around AMQP are dangerous, and unethical; that Red Hat's Promise is weak to useless, containing several major loopholes and ignoring the needs of open standards to get closed source adoption; that seeking software patents at all is to endorse and invest in the patent system, which is hostile to competition and to the software industry.
You defend your employer. That is right.
I defend the rights of free and open standards to exist in a patent-free space, and the right of all software producers without discrimination - closed or open source - to compete in a free and open market. Software patents are an abomination, and any firm that acquires them, no matter what the excuse and justification, is collaborating in the prolongation of that abomination.
I note that Red Hat are claiming a patent on SOAP over CGI:
http://slashdot.org/firehose.pl?op=view&id=3828063&art_pos=1
Roy Schestowitz
2009-03-20 10:05:33
I ought to clarify: this is not an article. This is an assemblage of comments from Pieter. I kindly asked him if he would permit me this to repost these, which he agreed reluctantly in the sense that it knew it was a little acidic.
So, I guess what I'm trying to say is, treat this post as though it was a quick remark and not a formal article. Some statements may have been made at the heat of the moment, so I believe that Pieter could phrase it more accurately/politely. I wish not to speak on his behalf though, so I hope he can clarify. If this post was disparaging in any way, it is me who deserves to take full responsibility.
Roy Schestowitz
2009-03-20 09:30:38
Yes, we were knocked offline by heavy load, but I am upgrading the installation of WordPress right now and rearm it with wp-cache (finally!), which may help in reducing load imposed by newer posts. I'm trying to figure out how how to use it effectively for site archives because spiders are responsible for about a third of the load and they just re-fetch old posts that don't change much.
Gordon Sim
2009-03-20 09:57:30
Re the article that so insensed you: RabbitMQ were indeed not part of the initial AMQP working group. IMatix clearly were and should have been mentioned. However as that is not as familiar a name as some of the others quoted, it seems harsh to infer deliberate conspiracy from that rather than assuming that unfortunately the smaller, less well known company slipped from someones mind. Red Hat did indeed take code that had its origins within JPMC and used that as the base for the Apache Qpid project, there is nothing inaccurate about that.
No direct quote from Brian Stevens or anyone else at Red Hat is inaccurate, is it? What specifically in this article are you saying is a lie and what is your evidence for believing it to be so and believing it to have originated at Red Hat?
You concede there are inaccuracies in your article (will you be correcting these?). Would you consider it appropriate for people to call you a liar, rather than seeking simply to correct the mistakes?
I'm not even arguing with your general point on patents. I'm simply saying that the text is tainted by unjustified, irrational and rather vitriolic outbursts which degrade the integrity of your article.
I admire and respect your work in bring AMQP to the public, and I consider you a friend and colleague in the task of achieving the goals of AMQP. I am disappointed by this article however.
--Gordon.
Roy Schestowitz
2009-03-20 22:00:35
Jose_X
2009-03-20 23:23:47
Pieter, I haven't read and don't read the promises and stuff unless a particular argument comes up and it is referenced, but the example you gave, if applicable, makes a good point.
Jose_X
2009-03-21 00:18:50
I also agree that salespeople FUD can be an effective weapon that works out of view, but keep in mind that any salesperson can always say anything. We need to worry more about public statements made by these companies. So, I think it is good you are challenging them..
However.. I do wish people would focus on getting more bang for their buck by attacking larger targets who have been accumulating many more patents for a long time and whose patents, if enforced, could be shown to create huge problems for a great many.
Red Hat does a lot more things right than a large number of other companies. I don't want to hold them to the highest standard while letting others get away with a lot more. This would remove leverage we have. ["We" I mean people that generally represent the interests of FOSS and the smaller players.]
And keep in mind that those that like GPL may not worry too much about patents that would put pressure towards 100% FOSS (also depending on how they are being used). That might be seen as trading in 2 strikes for a single strike, at least short-term.
To Red Hat: In a battle to save yourself from patents, having patents helps. It's true that being large is the main defense. And for the large, having patents helps more. But, Red Hat is outgunned. Their business model is a threat to some large players. This means that having patents around is likely to lead to their demise quicker because it is a bigger weapon when wielded by the big boys and their proxy. If Red Hat intends to sell out, they may want patents, except that they can probably be crushed or bought out for little anyway. In particular, they might be bought out for more if they stick to the right path because in this way they will pose a greater threat. And of course, Red Hat is a great brand in some circles. They don't have to be perfect, but they probably can't afford to muddy up their brand. People look for leaders and being and looking like the big boys will not be a good move moving further into the 21st century. Users and common citizens are becoming more empowered (a much louder voice) through the Internet and evolving technology. Sometimes it just takes time.
Pieter Hintjens
2009-03-21 06:58:07
Thanks for the comments. It's true that other firms take out a lot more patents than Red Hat - Microsoft has around 100x more.
However, we hold Red Hat to a much higher standard, by their own choice. Their statements make it look like they take patents only for the good of the community, to defend it against trolls and hijackers. (I'll not once again explain why "defensive patents" are a convenient myth.)
When a firm claims the moral high ground, they really need to prove they deserve it. However when I listen to the statements by Red Hat's lawyers, I see nothing that makes them any different from proprietary software firms. Fine words but under examination, the details don't work.
(The FFII is going to release documents showing that in 2005 Red Hat was pushing for, not against, software patents in Europe.)
It is very sad to have to tell the thousands of brilliant people who work with Red Hat that their patent lawyers are taking them on the slippery slope. But maybe this is a necessary part of keeping Red Hat where it needs to be: firmly against software patents, committed to open standards, and willing to take all competition and fight it with quality, not patents.
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.
saulgoode
2009-03-21 10:20:49
Objecting to restrictive behavior by an otherwise FOSS-friendly company is not what would remove that company's leverage, it is the restrictive behavior itself. It is not those who would challenge Red Hat to conduct itself consistent with the principles it promotes that diminish its ability to do "good", it is the inconsistent conduct itself.
Jose_X
2009-03-22 18:28:24
Jose_X
2009-03-22 18:37:42
Some may disagree; however, there are various ways to put Red Hat into their proper place rather than taking large risks, including taking them off the Angel List and putting them into their proper list.
The motivations of people that tend to like to take big risks are suspect in my eyes. [Naturally, this would be a subjective call.]
Pieter [or anyone else], I wasn't singling anyone out above or I would have used their names. I'll say to you that I know you are at an ugly end of a situation (increased risks moving forward as a "reward"), and I can understand you being angrier, more disappointed, etc, than most others right now. Hope something very positive comes out of your current (and any future) efforts.
Jose_X
2009-03-22 18:51:07
If Red Hat had intentions of getting some freebies by picking around in certain specific areas or if they purposely were trying to mock efforts against sw patents, they may have made a big mistake.
Pieter Hintjens
2009-03-22 20:16:26
Thanks for the comments. Let's say we hope for the best, but plan for the worst, when anyone, anyone at all, invests in software patents. One should remember the JPEG patents, which were originally filed to protect JPEG from patent trolls, which much later ended up in the hands of Forgent, who extracted $105m from various firms before the patents were invalidated, and who fragmented the JPEG format (giving us PNG).
This thread started with Red Hat filing patents around another open standard, AMQP, and their statements, shown to be weak if not false, that these filings were innocent. Most clearly, we've shown that Red Hat's promise is useless for an open standard, and also has many other loopholes. More seriously, we have examined Red Hat's claim to have systematically opposed software patents, and found this to be directly untrue. In 2005 they sought signatures to support software patents in Europe.
So hoping for the best: let's hope this is just ordinary incompetence and over-enthusiasm of Red Hat's patent lawyers.
But plan for the worst: let's examine Red Hat's software patenting strategy closely and see how much of a threat it presents to its FOSS competitors.
At the end of the day, I think the biggest threat to FOSS is not Microsoft, which patents the past (or its inaccurate vision of the future), but patents on ideas which are essential to FOSS's future. And like it nor not, these are most likely to come from a firm like Red Hat.
Roy Schestowitz
2009-03-22 21:01:29
Can proof of this be produced and made public?
Jose_X
2009-03-22 21:06:34
Trolls are a problem. One worry I have is that the system may not be able to remain in this horrendously broken state (in the US) forever and that patent supporters will work to ease the pain only enough to keep the system alive. If the system pain will in fact go down, we want to make sure that the ability for checks and balances are not removed during the "fix". In a checks and balances situation, we have to make sure that we don't remove one predator (trolls) only to lose our checks on Big Corp. Red Hat doesn't really fit into this picture unless they do something like encumber their patents to a life of defense. But defense of what, right? That will be a devil we'll have to deal with.
Keep in mind, I am not advocating we stay with a broken system or fix it some. I'm just trying to make judgment calls on what might be parallel hedges.
Just wrote this http://boycottnovell.com/2009/03/22/backweb-vs-msft/comment-page-1/#comment-60774 . And a few months back I wrote this http://boycottnovell.com/2009/02/04/the-api-trap-part-1/ which may help communicate to some audiences the problems with one aspect of the patent system. Every API has some risk of being a trap.
Some players will donate some patents as a cost to maintaining support for the patent system or to gain support in pushing through laws even more favorable to them and less to us.
>> So hoping for the best: let’s hope this is just ordinary incompetence and over-enthusiasm of Red Hat’s patent lawyers.
I'll go further and give them time to close the loopholes you are saying exist in their pledges. [Haven't read the pledges or else I might agree less conditionally.]
>> But plan for the worst: let’s examine Red Hat’s software patenting strategy closely and see how much of a threat it presents to its FOSS competitors.
I'm not against that. Along with Red Hat, everyone else should also be scrutinized, though if people want to pick Red Hat to study, I suppose that will serve some particular value. There may be other targets also worthy of a share of the spotlight.
>> At the end of the day, I think the biggest threat to FOSS is not Microsoft, which patents the past (or its inaccurate vision of the future), but patents on ideas which are essential to FOSS’s future. And like it nor not, these are most likely to come from a firm like Red Hat.
Red Hat is but one source of what may tomorrow end up in (eg) Monopolysoft's hands (patents or the whole company). Red Hat would be one hole in a sieve. Maybe Red Hat is more savvy than most when it comes to undermining types of FOSS and may be more willing than others to capitalize, but I'm not convinced they pose a unique or very powerful threat in this area.
Anyway, Pieter, my position is that I'd rather focus on the very real problems you are trying to anticipate, rather than to help wipe out today a company that today and perhaps for all time (in theory) contributes or will contribute a lot more than they take away.
>> One should remember the JPEG patents, which were originally filed to protect JPEG from patent trolls, which much later ended up in the hands of Forgent, who extracted $105m from various firms before the patents were invalidated, and who fragmented the JPEG format (giving us PNG).
I did not know that the justification given for jpeg patents were to protect against trolls. Yes, from what I have been reading here, this sounds eerily similar to this case with Red Hat.
Roy Schestowitz
2009-03-22 21:14:54
Jose_X
2009-03-22 21:26:39
>> Red Hat doesn’t really fit into this picture unless they do something like encumber their patents to a life of defense.
To be clear, I meant "..doesn't fit into this picture in a positive fashion unless...."
>> Keep in mind, I am not advocating we stay with a broken system or fix it some.
What I meant was: Keep in mind, I am not advocating we stay with a broken system or "fix" it some.
>> Just wrote this http://boycottnovell.com/2009/03/22/backweb-vs-msft/comment-page-1/#comment-60774
I'm guessing the ideal situation would be to get the patents encumbered in such a way that they could still result in a bonanza *from* abusers but not a hindrance to FOSS and small players. [BTW, I don't want to place all large corps into the same box, but the large do wield non-democratic extra power so do deserve greater scrutiny to match their greater threat.]
>> Maybe Red Hat is more savvy than most when it comes to undermining types of FOSS and may be more willing than others to capitalize, but I’m not convinced they pose a unique or very powerful threat in this area.
In the sense that there is still time for them to take their weapons and put together a plan that we can all live with.
**I know that there is a high urgency to develop such a plan in the case of any standard that has not yet taken traction.
Also, thinking about this some more, I worry that a company will make multiple inconsistent promises with the public getting the one that might not win in court (and then go out of business to avoid lawsuits). Perhaps public promises should be given priority over secret ones since the parties to the secret promises have the knowledge of the public promises but the public doesn't have knowledge of the secret ones.
**I prefer to see Red Hat commit the patents properly so we can move forward with extra backing. If they fail to do this quickly enough, the AMQP standard should be changed sufficiently now so that patents fall out of scope.
Jose_X
2009-03-23 00:43:38
Any producing company that did have patents, however pledged, should be allowed to use them in some sort of defense -- to bring down the attacker.
Consider a scenario where Microsoft attacks company X and company X figures they might fold but before so doing resolves to sink Microsoft as well -- injunctions against everything that will affect Microsoft negatively .
In this way a good set of patents can keep you perhaps in a position where you **don't have to negotiate at all** so long as you are willing to let the company possibly sink.. well, you might end up with more value as a troll.
Looking at it from this pov, we can see that patents committed the proper way can serve to protect your company against extortion from any major player while not serving as a weapon against smaller competitors.
Of course, trolls can come along promising to protect all small players and users, vowing to attack anyone that attacks these groups, or, in the case of a troll attacker, attack those that negotiated with the troll or maybe get back in some other way.
All of this is plan B of course.
PS: maybe TomTom is willing to convert into a patent troll and buy patents and attack Microsoft until Microsoft is no more. If they do this, they can probably gain funding and royalties from many supporters. PS2: "Troll" might not be the word I'm after.
Jose_X
2009-03-23 01:28:40
After a suit, consider partnering with anyone that has a patent that can be used against this attacker. In fact, the OIN is supposed to serve this purpose, or at least as a base level defense.
So some patents protect from some or many large companies but not directly from trolls.
A renegade troll is unstoppable.
********** As a major aside, here is one argument in favor of making FOSS immune from patents (arg useful to show a patent law without this exception very likely does not "promote the progress of the sciences and useful arts").
A healthy FOSS ecosystem brings huge wealth to all market participants (users, devs, inventors) no matter how great or small their contribution. While this doesn't provide extra direct incentives for great inventions, it shows that a patent system not respecting FOSS would really hamper FOSS, which allows for many to come together and innovate. So FOSS itself is not a direct motivation to invent, but it (a) provides a low friction environment to allow for many to cooperate in inventions (and to implement the inventions), and (b) is a great asset to all users/citizens and inventors. [(a) means, among other things, that FOSS saves on huge costs to inventors] FOSS promotes the progress of the sciences and useful arts. A patent system that hurts FOSS, already comes in with this huge liability to make up (not to mention that it would abridge rights citizens would normally have).
To this liability get added all the other negatives that come with software patents. For example, one "inventor" block creates serious disincentives for other inventors, especially when the invention, as in the case with the Red Hat patent, lies on top of work done by others. In fact, the primary inventor(s) along a particular line of development might all get blocked off because of a sneak attack by those following along ready to patent at a key juncture while the others are busy doing more fundamental inventing and perhaps not patenting themselves.
Were patents needed to get science to advance from the 15th century onward? Patents, at most, may serve a use where large costs in manufacture (distribute, etc) cannot be recouped. Perhaps a proof of such failure should be included with the patent application. Such a patent can be "invalidated" if a challenger finds an acceptable way to produce the goods cheaply enough or finds an acceptable funding source for cost recuperation and some profit. To aid in this, the government might institute a tax to help reward inventors. This should solve almost all cases where we might be tempted to reward a software patent.
And this argument is based on US Constitutional requirements. It would apply even to any potential "fix" of our current ridiculously unconstitutional patent system (unconstitutional, at least to the extent that software patents would ever be upheld, especially against FOSS.. Bilski might now serve as a correcting factor to possibly postpone some constitutionality challenges).
Pieter Hintjens
2009-03-23 09:14:37
It's not about "bringing down" any company and certainly not through using patents. The point is that these are fundamentally unethical instruments dating from the 19th century when politicians still thought you could create wealth through tariffs and taxes and borders.
What it is about is creating a level playing field in which every firm can compete freely and openly, on quality of product and service.
I don't accept the argument that in order to level the field, one must temporarily tilt it further. I'd never condone the use of patents to attack another firm, no matter what the circumstances. The proper way to fight software patents is to reform the patent system. This is what I'm calling on Red Hat to do, rather than prop up the system by investing in it, and making feeble promises about being nice.
Reform of the patent system is doable. Not some fuzzy split between business patents and software patents - they are the same thing. But a ban on patents on anything that is not a physical product, and if that fails, the end of all patents, period.
When Microsoft come out with "patent promises" which do nothing except protect their herds of tame developers, they also deserve ridicule.
Nothing less than a GPL-compatible license is an acceptable promise.