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.

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).

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.

>> 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.

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.

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.

Can proof of this be produced and made public?

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.

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.

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.

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.]

Rejection of the restriction of freedom is not “the highest standard” in Free Software; it is the core principle. And the most “bang for their buck” comes from those who would espouse software freedom adhering to its principles.

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.

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.

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, 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.

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

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

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.

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.