Red Hat gears up for patent fights on two fronts

By Matt Whipp

Posted on 3 Jun 2005 at 17:13

Red Hat is looking to Europe to set a precedent to overhaul the US patent system.

At the Red Hat Summit in New Orleans today, Mark Webbink, Deputy General Counsel at Red Hat, said that the open-source company is putting its weight both behind reform of the formative European patent directive and overhauling the US system.

In a separate interview, he told us that negotiations with the European Parliament were going 'quite well,' and that Red Hat was 'tickled to death' to share a common ground with the likes of Sun and Oracle on ensuring that European patent legislation around software was as watertight as possible.

Webbink said that although the EU was well aware of the views of the likes of the Foundation for a Free Information Infrastructure (FFII), which seeks to do away with software patents altogether, it is also keen to hear from commercial vendors that will have to live with such legislation and take the same position as the FFII.

Red Hat however is more doubtful about doing away with software patents in their entirety and instead is looking to Europe to create very stringent legislation around the patenting of software, and then to take that as a precedent to bring about change to the US system.

'We think that there has been a far healthier legislative debate in Europe than there has ever been in the US,' said Webbink.

In the US, patent legislation has been set by case law rather than legislation from the outset and has been the subject of much scorn for allowing dubious patents such as 'one-click' shopping.

Webbink said that Red Hat held the same position as any company worth its salt on this matter. 'Our good buddy Brad Smith [Microsoft's general counsel] has said we need greater uniformity ... and we couldn't agree more.'

'Patents are not equal to innovation,' stated Webbink in his keynote today. 'More often, innovation occurs despite patents. What we observe today in the software industry is the use of patents to maintain marketshare, even where that marketshare has been obtained by anticompetitive means. We need to move away from a system of software patents compromised by trivial, incremental enhancements that block innovation, to a system that is aimed at rewarding substantial innovation.'

Red Hat's aim then is to create a patent commons for the open source community, whereby open-source companies would allow other open-source companies to use patents donated to this pool, licence-free and without the fear of being taken to court.

Indeed, tentative moves towards this position have already been made with IBM donating 500 patents, Sun offering access to the IP in its Solaris platform providing derivative products conform to its CDDL licence (which nevertheless has been ratified by the OSI), and even Nokia chipping in, by promising not to pursue patent infringements involved in the development of the Linux kernel.

However, the different terms and conditions under which these various parts of patent portfolios can be used makes life complicated for an open-source developer. Clearly there needs to be a central body to manage the patent pool and standardise the agreement under which these patents are utilised. The obvious candidate would be the Open Source Development Lab (OSDL).

When we spoke recently to the OSDL Marketing Director Nelson Pratt, he told us: 'We've not been asked to be custodians of any patent pool ... We'd certainly consider it. But we support the idea irrespective of who it is. In fact I think it's inevitable that this evolves into some kind of patent commons.