Photo by Joi Ito

Summary: With engineers back at the helm's top positions, Google steps further away from software patents and joins Red Hat's opposition to them

BACK when Google started defending Android from SCOracle, it did throw some hints that it would oppose software patents. Groklaw covered it thoroughly at the time. Google has been suffering from patent lawsuits more than Microsoft has and Android has been the subject of litigation from Microsoft and its allies (like Traul Allen or Nathan Myhrvold).

Microsoft is now using the i4i case to address a particular problem with the patent system. Dr. Glyn Moody explains that it is "significant how much support Microsoft has here" and Rob Tiller from Red Hat describes the case as a "possible game changer for invalidating bad software patents":

A case now before the Supreme Court could lower the threat level created by bad patents in a meaningful way. The issue before the Court is whether to change the burden of proof on patent invalidity from clear-and-convincing evidence to the preponderance standard. This change would be good for free and open source software.

Today Red Hat joined in an amicus brief in support of this change in Microsoft Corp. v. i4i Limited Partnership. [PDF] On the amicus brief, Red Hat is part of a diverse group that includes Google, Verizon, Consumber Electronics Association, Comcast, Dell, Hewlett-Packard, HTC, Intuit, L-3 Communications, LinkedIn, Lockheed Martin, Mastercard, The New York Times, Rackspace, Shutterfly, Software & Information Industry Association, Time Warner, Wal-Mart, and Zynga.

"[T]ho' no good SWpat [software patents] exist," Carlo Piana wrote to emphasise that Tiller's notion of "bad software patents" is too much like the OIN's (all software patents should be seen as bad), later adding: "I get Rob's argument, hope RH succedes. However, the cure is not removing "bad" swpats [software patents], it's removing swpats altogether"

Piana is right and here is Red Hat's press release on this matter. Google has produced no such statement, but its position does serve to show a strategic change. It's very important.

What we found a lot more interesting, however, is the involvement of Google, which this one writer lumped in (along with Red Hat's, expectedly);

Red Hat, Google, Dell, and several other companies have filed an amicus brief with the U.S. Supreme Court challenging "poor quality" software patents, Red Hat said on Thursday.

The brief, filed in the case of Microsoft v. i4i Limited Partnership, contends the burden of proof applied to invalidate patents impedes innovation and should be changed. The case concerns whether a party attempting to show that a patent should never have been granted must establish invalidity by clear-and-convincing evidence. Amicus parties argue this standard favors holders of bad patents and should be replaced by the standard of preponderance of evidence.

This can also be found here. Might the Google that's run by Page finally decide to adopt a Red Hat-like attitude towards software patents? Let's hope so. Red Hat is not merely joining this battle as this one article headline claims, so the news is about Google, which seemed not to have a problem with software patents until some time last year. Matthew Lasar has more to say on the subject (regarding the involvement of advocacy groups) and the EFF's contribution is noted here:

Current Standards to Invalidate Patents Impede Software Innovators

San Francisco, CA - infoZine - The Electronic Frontier Foundation (EFF), joined by Public Knowledge and the Apache Software Foundation, urged the U.S. Supreme Court Tuesday to make it easier to invalidate bad patents -- a decision that would benefit software innovators both large and small.

Microsoft blogger Julie Bort creates a headline which makes Microsoft seem loved by its opponents which it extorts and threatens (and who also disagree on software patents). It is somewhat of a theme in IDG and Rui Seabra responds to the Bort piece by writing:

Microsoft has been selling Word without permission since Jan 11 2010 in i4i swpats [software patents] dispute

Indeed. That's how bad software patents tend to be. In this case, the target being Microsoft makes it easier to endorse, but another day the target can be a product like Android or RHEL. Speaking of which, Red Hat's Fontana says: "It'd be kind of funny if the Apache Foundation moved to a Native American reservation to avoid patent risk". The reference is a news item of considerable interest. Yes, based on this item, TechDirt claims that "Native American Nation [Is] Shielded From Patent Infringement Claims". To quote:

Joe Mullin points us to the news of how the Quapaw Tribe of Oklahoma succeeded in having a patent infringement case against the tribe dismissed, due to the sovereign immunity of the Native American nation. The ruling (embedded below) is pretty straightforward. Basically, it notes that sovereign immunity is well established for Native American nations and that there's nothing that appears to remove that immunity in this case.

The whole world and especially the United States would be better off without patents. Greed does not breed innovation, freedom does. ⬆