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Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw)
Groklaw covers the patent infringement suit filed against Red Hat and Novell by IP Innovation. "You might recall the patent was used in litigation against Apple in April 2007, and Beta News reported at the time that it's a 1991 Xerox PARC patent. But ars technica provided the detail that it references earlier patents going back to 1984." The real focus of the article seems to be an attempt to find a Microsoft link, though; there is not much information on the patent itself.
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Here we go again... Posted Oct 12, 2007 13:17 UTC (Fri) by dion (subscriber, #2764) [Link] I wonder will the same pundits that backed SCO also back this troll?
Here we go again... Posted Oct 12, 2007 13:45 UTC (Fri) by Holmes1869 (guest, #42043) [Link] There's a chance, but since the SCO thing was so easily destroyed (thanks to everyone that contributed to that in one way or another), perhaps they'll be a bit more cautious. The financial press will cover it, but hopefully there won't be any big cover stories (Was Darl on the cover of Forbes or Fortune? Can't remember.).
I support the idea of having patents, and I think the founders of our country had really good intentions. But at some point in time, you/Congress have to say "This makes no sense for software." As a citizen of the greatest producer of wealth in this world, the thing that scares me most about this type of litigation is the loss of productivity. Production in all forms (manufacturing, software, etc.) is a beautiful thing. I'd hate to see it decrease because of ridiculous lawsuits.
Here's to hoping that Red Hat and Novell actually fight this one out. I wish Apple would have.
Cheers
Here we go again... Posted Oct 12, 2007 16:27 UTC (Fri) by boudewijn (subscriber, #14185) [Link] According to Gibbon at least, endless lawsuits was what brought down theWest Roman empire...
Here we go again... Posted Oct 12, 2007 20:59 UTC (Fri) by dmarti (subscriber, #11625) [Link] Well, if you live in Europe, please clip and send the news of this case to your government and member of the European Parliament. Let them know what they're in for if the software patent lobbyists in Europe get their way.
Here we go again... Posted Oct 13, 2007 15:39 UTC (Sat) by gravious (guest, #7662) [Link] Is that a joke :) ? I'll bite anyway! From Wikipedia (not in any way definitive but you know...):According to Gibbon, the Roman Empire succumbed to barbarian invasions because of a loss of civic virtue among its citizens.[3] They had become lazy and soft, outsourcing their duties to defend their Empire to barbarian mercenaries, who then became so numerous and ingrained that they were able to take over the Empire. Romans, he believed, had become effeminate, unwilling to live a tougher, "manly" military lifestyle. Blackwater *cough* fundamental Evangelicals *cough* *cough* More on topic: I believe the patent and copyright mess is symptomatic of the Friedman-esque rampant corporatism of G7 governance and until the mess very measurably becomes a drag on productivity or GNP growth the suits won't do a thing. I am aware that is all quite abstract and sound-bitey. With reference to the lawsuit, I believe it will come as a surprise to IP Innovation (oh the irony) that litigating a part of our community incurs the wrath of all.
Here we go again... Posted Oct 12, 2007 17:50 UTC (Fri) by mikov (subscriber, #33179) [Link] Here's to hoping that Red Hat and Novell actually fight this one out. I wish Apple would have. I don't think they have a choice. They wouldn't be able to distribute GPL software if they licensed the patent. Unless they bought the patent and put it into the public domain, I guess ?
Here we go again... Posted Oct 12, 2007 22:16 UTC (Fri) by drag (subscriber, #31333) [Link] They can patent GPL'd software as long as they agree to let anybody else use the patent freely if they use that GPL code.
They don't have to release it to the public domain, per say, they just have to agree to not to sue.
If they like they could add the patent to the OIN and use it as a weapon to help defend Free software from agressive lawsuite-friendly software companies.
Unfortunately against IP trolls like this IP Innovations place it's worthless.
IP Innovations don't actually produce anything so since they don't make any software or distribute any software or provide anything of any kind they can't violate patents. Their sole purpose in life is to threaten companies that actually do stuff.
Here we go again... Posted Oct 12, 2007 15:29 UTC (Fri) by 3vi1 (guest, #39830) [Link] More importantly, will these patent trolls get squashed just like SCO?
I hope so; I hope they lose everything: I hope they get counter-sued and prosecuted for extortion. The world needs a good example to discourage other patent trolls from doing this kind of thing in the future.
If the company suing had truly innovated, and manufactured an actual product based on the patent, I would have more sympathy for them. As is, they appear to be nothing but criminals trying to game the (broken) system, IMHO.
Here we go again... Posted Oct 12, 2007 16:40 UTC (Fri) by kune (guest, #172) [Link] The SCO lawsuit has not been about patents but about copyright and its interpretation.
Here we go again... Posted Oct 12, 2007 23:47 UTC (Fri) by rise (guest, #5045) [Link] SCO has claimed every major variety of intellectual property violation including patents at one point or another, eventually falling back to only copyright and a theory of derivative works that's generally been dismissed by the legal community. They then largely abandoned even that position and tried to shift their IBM case to being solely a breach of contract one. Though I'm sure that SCO would prefer that the public forgot their previous claims, the public record doesn't bear it out.
Here we go again... Posted Oct 13, 2007 6:57 UTC (Sat) by kune (guest, #172) [Link] I agree that the legal theories of SCO have been wrong. But could you please reference any reliablesource, where SCO claimed that IBM infringes SCO's patents.
Here we go again... Posted Oct 13, 2007 10:18 UTC (Sat) by stijn (subscriber, #570) [Link] For what it is worth, I read the phrase "get squashed like SCO" without interpreting it in thecontext of patents and lawsuits. As in "get squashed badly".
Here we go again... Posted Oct 13, 2007 22:30 UTC (Sat) by tzafrir (subscriber, #11501) [Link] This is factually incorrect.
SCO's claims were about copyrights.
At some stage IBM used some of its patents to counter-sue SCO. So it was IBM who got patents into the game,
Here we go again... Posted Oct 12, 2007 18:33 UTC (Fri) by sepreece (subscriber, #19270) [Link] While I think the current system has major problems, "nothing but criminals trying to game the (broken) system" is over-the-top. You can't be a "criminal" if you're operating within the system - they clearly aren't committing any "crime". The system, as you say, is broken.
Here we go again... Posted Oct 12, 2007 22:18 UTC (Fri) by drag (subscriber, #31333) [Link] They are criminals in a real sense. Just not legally.
Reality and the Legal System are very rarely aligned.
Here we go again... Posted Oct 12, 2007 22:20 UTC (Fri) by sepreece (subscriber, #19270) [Link] You may choose to use words to mean whatever you mean to say, but nobody else will understand you...
Here we go again... Posted Oct 12, 2007 22:21 UTC (Fri) by drag (subscriber, #31333) [Link] If you can't understand what I just said then you've got more problems then just a very anal view of the english language. :)
Here we go again... Posted Oct 13, 2007 2:49 UTC (Sat) by sepreece (subscriber, #19270) [Link] Sure, I can understand what you're trying to say - I just have to ignore the words and read the attitude :)
Here we go again... Posted Oct 13, 2007 6:58 UTC (Sat) by drag (subscriber, #31333) [Link] Anyways it _was_ proper use the word criminal.crim·i·nal(krĭm'ə-nəl) adj. 1. Of, involving, or having the nature of crime: criminal abuse. 2. Relating to the administration of penal law. 3. a. Guilty of crime. b. Characteristic of a criminal. 4. Shameful; disgraceful: a criminal waste of talent.
Here we go again... Posted Oct 13, 2007 15:25 UTC (Sat) by sepreece (subscriber, #19270) [Link] The metaphoric use is an an adjective, which is not the way it was used in the original quote.
Here we go again... Posted Oct 12, 2007 21:21 UTC (Fri) by rahvin (subscriber, #16953) [Link] The best example the community could make is to get every patent held by this company re-examined by the patent office and invalidated. By doing so we should be able to scare any patent troll into avoiding Linux for fear of having all their patents invalidated.
An additional note Posted Oct 12, 2007 13:47 UTC (Fri) by corbet (editor, #1) [Link] Your editor thinks that a focus on Microsoft is truly misplaced here. There's no shortage of patent trolls willing to pursue this kind of action on their own, and one would think that a Microsoft-sponsored troll would have made a point of suing Red Hat and leaving Novell alone. As it is, the fact that Novell, too, is named just calls to attention how thin the "protection" bought by Novell really is.
An additional note Posted Oct 12, 2007 14:04 UTC (Fri) by kripkenstein (subscriber, #43281) [Link] > a focus on Microsoft is truly misplaced here [...] and one would think that a Microsoft-sponsored troll would have made a point of suing Red Hat and leaving Novell alone.
Yes, good point. The Groklaw article was a bit too focused on a Microsoft conspiracy connection for my taste. When this might be just another case of patent trolling - Microsoft gets sued all the time; no reason why Novell and Red Hat shouldn't either.
Yet, the very recent comment by Ballmer that 'Linux might get sued by patent holders' does seem an odd coincidence. The theory that he might have had foreknowledge of these lawsuits doesn't seem as far-fetched as the theory that Microsoft is actually behind them.
An additional note Posted Oct 12, 2007 14:24 UTC (Fri) by dmarti (subscriber, #11625) [Link] I agree -- MSFT's interest is for the patent trolls to keep quiet for now, so that it's easier for MSFT's lobbyists to get US-style software patents in other countries. If the trolls go nuts in the USA, politicians in the rest of the world will find it harder to get software patents through.
An additional note Posted Oct 12, 2007 15:51 UTC (Fri) by ccchips (subscriber, #3222) [Link] Not really "focus", but note: Novell, Red Hat, Apple, but not Microsoft. Seems like every software maker who got seriously into desktops is a potential target for this jerk.
Misplaced? Posted Oct 12, 2007 17:00 UTC (Fri) by dwheeler (subscriber, #1216) [Link] I wouldn't be so sure. Several top execs came straight from Microsoft, just before this suit was filed. Perhaps even more tellingly, Novell and Red Hat are named in the suit, while Microsoft is not. Microsoft may have a "deal" with Novell, but Microsoft has a strong financial incentive to arrange attacks on Novell by others. And of course, Microsoft has explicitly said for years that patents were how they planned to attack OSS. So we have motive, method, and opportunity; perhaps the patent troll and Microsoft are unrelated, but I would not presume it.
Misplaced? Posted Oct 12, 2007 18:30 UTC (Fri) by sepreece (subscriber, #19270) [Link] "Microsoft has explicitly said for years that patents were how they planned to attack OSS"
I would have said that they attacked by suggesting that they had IP that Linux seemed to violate, thus raising questions about whether it was safe to use Linux. I don't remember them ever saying that they would pursue those patents, though. [If I have forgotten such a statement, I apologize.]
Misplaced? Posted Oct 12, 2007 23:31 UTC (Fri) by AJWM (guest, #15888) [Link] "Using patents to attack FOSS" doesn't necessarily mean that Microsoft would use Microsoft's patents to attack FOSS.
Indeed, it would be a strategic move on Microsoft's part not to do so - a direct lawsuit by Microsoft would trigger retaliatory patent lawsuits by others, and Microsoft has something to lose there. Patent trolls don't.
War by proxy is nothing new; the superpowers engaged in it during the Cold War when the threat of nuclear retaliation precluded a direct attack. The "mutual assured destruction" of a direct patent war between two or large companies who actually produce something (vs patent trolls) has been raised before.
An additional note Posted Oct 12, 2007 17:18 UTC (Fri) by elanthis (subscriber, #6227) [Link] "As it is, the fact that Novell, too, is named just calls to attention how thin the "protection" bought by Novell really is."
They never bought any protection. They made a standard patent protection claim that any two tech companies making a large software cross-selling agreement would make. But hey, why ask people who know business when you can ask bigoted tech-nerds about how business deals work?
An additional note Posted Oct 12, 2007 18:01 UTC (Fri) by corbet (editor, #1) [Link] ...then those millions of dollars paid to Microsoft by Novell are buying exactly what, please? This "bigoted tech-nerd" - who has learned a bit about business deals by virtue of running a business for the last ten years - would sure like to know.
An additional note Posted Oct 12, 2007 18:20 UTC (Fri) by sepreece (subscriber, #19270) [Link] "then those millions of dollars paid to Microsoft by Novell are buying exactly what, please?"
Well, I'm just another tech-nerd, but my understanding was that part of what they bought was a promise that *Microsoft* would not sue *Novell's customers*. Since this suit doesn't involve Microsoft or Novell customers, I don't see how you can draw any conclusions about that deal from this suit.
An additional note Posted Oct 12, 2007 21:58 UTC (Fri) by tialaramex (subscriber, #21167) [Link] My understanding is that Novell get an exclusive sales relationship. Customers who are looking for something that Microsoft doesn't really do (e.g. Netware integration, or just Unix in general) can be sold SuSE for that job, without Novell spending a penny on customer acquisition.
Usually a Microsoft salesman offers a Microsoft-only deal. They won't suggest that you use products from Oracle, or Logitech, or Google, let alone Red Hat or Apple. And that sometimes loses them valuable deals. Microsoft may still make a bunch of dough from a site license for desktop Windows, but lose all the servers even though the customer would have gone with IIS, they just couldn't stomach MS SQL, or they needed a Java middleware solution and Microsoft suggested rewriting everything with DotNet and C#.
My impression was that this deal means e.g. a Microsoft salesman can include SuSE in a Windows-centric bid to customers who otherwise might not be interested because the Microsoft product offerings don't solve their entire problem. I thought one of the follow-up stories about the deal already said this had boosted Novell's sales ?
microsoft paid novell, not the other way around Posted Oct 13, 2007 18:44 UTC (Sat) by dlang (subscriber, #313) [Link] microsoft paid novell millions, and novell agreed to pay microsoft a small amount for each copy of SuSE sold.
microsoft paid novell, not the other way around Posted Oct 13, 2007 20:52 UTC (Sat) by corbet (editor, #1) [Link] In other words, Novell is paying a per-unit charge to Microsoft. Which adds up to millions of dollars. Are you disagreeing with that, somehow?
microsoft paid novell, not the other way around Posted Oct 13, 2007 21:33 UTC (Sat) by dlang (subscriber, #313) [Link] microsoft paid novell $100+m, novell will pay microsoft a small per-copy fee.
it may be that novell will sell enough copies of SuSE that the balance ends up being in microsoft's favor, possibly by millions, but that's not the case so far, and may never be the case, it all depends how many copies they sell.
but listing it as 'what else did novell pay microsoft millions for' is misleading at best.
microsoft paid novell, not the other way around Posted Oct 13, 2007 21:49 UTC (Sat) by corbet (editor, #1) [Link] Why is it misleading? What, exactly, is Novell paying for?The balance of payments is completely irrelevant. Novell is paying a tax. I don't understand why the conversation always gets so slippery every time I ask what is being paid for.
microsoft paid novell, not the other way around Posted Oct 14, 2007 4:43 UTC (Sun) by paulj (subscriber, #341) [Link] Or Novell are giving Microsoft a kick-back on each copy of SuSe MS sell, i.e. a referall fee, paid for from the margins on the unit sold. Which wouldn't be an uncommon or sinister arrangement really.
Or not?
microsoft paid novell, not the other way around Posted Oct 14, 2007 7:47 UTC (Sun) by njs (subscriber, #40338) [Link] Or not. Novell is apparently paying MS a percentage of *all* Suse revenues, including for copies that Novell sold all on their own and MS had nothing to do with -- at least as far as I can tell from the last line of their SEC filing[1], which is admittedly a bit vague.
[1] http://www.sec.gov/Archives/edgar/data/758004/00007580040...
microsoft paid novell, not the other way around Posted Oct 14, 2007 14:53 UTC (Sun) by paulj (subscriber, #341) [Link] If this agreement concerned any other two parties, ones not affected by contraversy and suspicion, most people'd conclude that if the Novell-like party were paying based on *all* their sales, that this was agreed because:
- The MS-like party are to spend money marketing Linux and Windows virtualisation /generally/
- The Novell-party should see a general increase in sales (to whatever extent) from such spending, beyond just those sales it sees in direct referrals from the Microsoft-like party.
That'd be the most reasonable explanation if it didn't involve MS..
Business deals Posted Oct 13, 2007 15:22 UTC (Sat) by tony (guest, #3654) [Link] Why not ask someone who understands business?
Oh, I understand business. I understand that big businesses are typically pitiless, underhanded, and work in their own best interest. Therefore, in every business deal, you have to ask, "What's in this for each party?"
In the Novell/Microsoft deal, Microsoft has frequently, loudly, and vehemently proclaimed GNU/Linux and other free software are vulnerable to patents. Microsoft has interest in seeing GNU/Linux die. It has *no* interest at all in seeing GNU/Linux succeed.
So, in view of that, and in Microsoft's ruthless business history, I believe this was no ordinary patent cross-licensing deal (which Novell and Microsoft had for years, anyway). In every analysis, Microsoft had nothing significant to gain.
Near as I can tell, what Microsoft got was a Microsoft proxy to crank out poison pills, such as Moonlight (an attack on web standards, poised to take on "Web 2.0" (a stupid business term)) and OOXML advocates within the free software community.
And finally, there is the reaction by Microsoft itself. Ballmer's statements after the deal were more mafia-like than business-like, implying patent doomsday for anyone who didn't sign a similar deal with Microsoft. This is not typical after a company signs a simple patent cross-licensing agreement. Also, there were reports of Microsoft sales representatives using this deal as pressure against GNU/Linux. (A friend of mine basically had his MS sales rep say, "You upgrade to Vista, everything will be safe. You go with Linux, and there's no telling what might happen.")
So, yeah. In this case, I trust the biased geeks. People who know business don't seem too bright, anyway-- back in 2000, every geek I knew saw the end of the dot-com bubble. Businessmen just kept investing.
An additional note Posted Oct 12, 2007 17:22 UTC (Fri) by ajross (subscriber, #4563) [Link] With all respect due our editor, I'm not sure. What's the motivation here for IP Innovation? Remember that patent infringement suits are actually very, very rare in comparison to patent settlements. If your business model consists solely of paying lawyers to draft contracts and filings, it makes sense to take a comparatively small cut of a target business's revenue. Actually going to court is a huge risk to these firms. If they lose, they lose not only the revenue from the target, but all revenue from the patent. So now they've gone and sued Red Hat and Novell: two companies who are required (by virtue of the license under which they received their software -- patent license fees constitute "extra conditions" under the GPL) to fight this to the death. Either they win and IP Innovation loses their patent, or they lose and have to pull the feature (virtual desktops, apparently?) out of the US versions of the distributions. In neither case does IP Innovation get paid. They can't get paid, unless Red Hat and Novell find some way around their distribution licenses. So why file the suit? It's all risk and no upside. And the linux desktop market is tiny, anyway. I smell something at work, honestly. And I'm not one normally given to conspiracy theories.
An additional note Posted Oct 12, 2007 18:23 UTC (Fri) by sepreece (subscriber, #19270) [Link] "In neither case does IP Innovation get paid."
Well, even if Novell and Red Hat stop distributing infringing systems [assuming that they are], the plaintiff would still be able to claim damages from all sales to date, probably trebled as willful infringement because the Apple suit got enough attention that they should have been aware of it.
An additional note Posted Oct 12, 2007 18:30 UTC (Fri) by ajross (subscriber, #4563) [Link] I'm not a lawyer, but I'm all but certain that's not how "willful" is defined. The test isn't whether or not the party knew about the patent, but whether they reasonably believed it to be valid. All Red Hat and Novell have to show is that the decision makers (who, remember, are free software developers -- RH/Novell just packaged what they got from Gnome) thought this was invalid after the Apple suit. Scan through the comments above and on Groklaw for a sampling of what the free software community thinks about this patent. :)
An additional note Posted Oct 12, 2007 20:47 UTC (Fri) by sepreece (subscriber, #19270) [Link] My understanding is that the the patent court begins with the assumption that patents are valid (hence the RIM situation, where getting the patents invalidated didn't help them avoid an injunction). With that bias, I would expect the court to similarly accept that knowledge of a patent was sufficient to establish willfulness. But IANAL.
Most of these patents do seem bogus. This one, if it really reaches back as far as 1984, may be harder to invalidate. Windows were relatively new, then. The inventors (as opposed to the company that owns and is prosecuting the patent) do seem to have been in roughly the right place and time, but I have no detailed knowledge on this.
An additional note Posted Oct 13, 2007 3:16 UTC (Sat) by felixfix (subscriber, #242) [Link] Yes, but willful I think has a specific legal meaning that you knew about the patent and thumbed your nose at it anyway. IANAL of course, but I suspect there is something to that. Now will they get any damages if they claim willful and can't prove that? There's a question.
An additional note Posted Oct 12, 2007 20:32 UTC (Fri) by fritsd (subscriber, #43411) [Link] Yes, but I think the point is if they had sued Microsoft instead of Novell and Red Hat, they could have got a settlement worth millions, and Microsoft would be more likely to settle instead of "battle to the death" as pp puts it.So why then do they sue those two companies which for them carries the same risk (losing the patent they use as a weapon) but much lower possible profit, compared to sueing Microsoft.
I haven't read the actual patent, is it likely that Microsoft just doesn't infringe it?
An additional note Posted Oct 12, 2007 20:55 UTC (Fri) by sepreece (subscriber, #19270) [Link] I also haven't read the patent in any detail. I think there are technical differences between the implementations and capabilities of the windowing technology in Windows versus those in X11 that *could* affect whether this patent applied, but I don't know enough about the patent to begin to guess whether that's the case.
I do agree that it seems odd to pick on the defendants they chose.
An additional note Posted Oct 12, 2007 20:29 UTC (Fri) by kripkenstein (subscriber, #43281) [Link] > So now they've gone and sued Red Hat and Novell: two companies who are required (by virtue of the license under which they received their software -- patent license fees constitute "extra conditions" under the GPL) to fight this to the death. Either they win and IP Innovation loses their patent, or they lose and have to pull the feature (virtual desktops, apparently?) out of the US versions of the distributions.
Hmm, that is a good point. So, if a patent troll holds a crucial patent - to something that if you pull the feature, your OS is useless - then Red Hat, Novell, etc. are out of options, but to stop selling Linux? (assuming they lose the fight)
If so then commercial Linux seems highly vulnerable in the US and other software-patent-granting areas (and perhaps community Linux as well, to a lesser degree). I hope I am missing something?
An additional note Posted Oct 12, 2007 22:12 UTC (Fri) by man_ls (subscriber, #15091) [Link] As somebody else has suggested above, Red Hat can buy the patent and put it in the public domain (or give it to OIN). Alternatively they can work around the patent so their product does not infringe anymore (even if they have to settle for their previous use). Or IBM and OIN and other powerful friends can convince them to forgive about the patent: even if the company has no products I bet they can be sued for a lot of things (and IBM can darken the skies with lawyers of whatever dirty hole they come out of). All of this is considering that the patent is really valid; a stronger argument is to invalidate the patent.Some day somebody will find an unavoidable patent that is valid beyond doubt and all Linux distributors are found to infringe, like "method and apparatus for writing a monolithic kernel in C" (filed in 1981), or something. That day there will be a big party at Microsoft HQ. I would bet that GNU/Linux is so big nowadays that this patent would lead to a huge patent reform. Until that moment we can only speculate, and fight software patents in Europe.
An additional note Posted Oct 12, 2007 19:48 UTC (Fri) by vblum (subscriber, #1151) [Link] Perhaps you're being a bit too fair here? The two MS guys joining the company recently .... stink. Following the money trail is an outstanding idea, regardless of what comes from it. There are too many people that have used convenient front businesses to push out the competition, historically, to not check. See, e.g., the scheme Thomas J Watson Senior was involved in prior to IBM (see Wikipedia).
Incidentally, a good analysis of this patent can still be done independent of the money trail anyhow. It's fine to follow both leads. Just the patent sounds like it might need a bit more time.
This one stinks. It may not even be that M$ cares about the FULL potential impact of this. It's enough that they'll aid ina scheme to expose their competition to the same nasty schemes that they've been exposed to for a while now. It makes perfect business sense.
The fact that there is that little antitrust issue agains M$ may come back to bite them here, though. I hope. The involvement of a lot of ex-M$ guy that joined the patent troll very recently should be damaging to M$, whether intended or not.
An additional note Posted Oct 12, 2007 22:14 UTC (Fri) by tialaramex (subscriber, #21167) [Link] A quick scan of the list of patent lawsuits linked by Groklaw shows that in the same period (basically seems to be early October) there were at least two or three patent lawsuits filed against Microsoft in the same court.
So far as I know that's not unusual. Most Microsoft products attract a large number of patent lawsuits. Microsoft has such a range of products in a wide variety of fields that even if they were not so prominent and so obviously wealthy they would undoubtedly attract many such lawsuits.
In theory Microsoft is pro-reform as far as software patents are concerned rather than pro-patent per se. But their lawyers (who would lose their jobs if Microsoft didn't have this endless series of lawsuits to fight) seem to get to write policy here, which is a serious mistake regardless of what you personally think about patent policy. The fox is running the hen house, and it may cost Microsoft more than it ever costs Red Hat or Novell.
An additional note Posted Oct 12, 2007 23:00 UTC (Fri) by dag- (subscriber, #30207) [Link] Jonathan,
I think you think too kindly of Microsoft to expect that Microsoft would be sticking to a 'partner' they have a deal with. :)
It would be a superb strategy (playing the devil's advocate) if they on one hand show they are kind to Linux and Open Source like they pretended with the Novell deal. And on the other hand add extra FUD and threats to Linux by having other parties (patent trolls) attack Linux and Open Source using patents.
Microsoft has the money to pay them off, Apple may have the money. But kill Open Source by unleashing the lions.
Nobody can publically point to Microsoft (as long as there is no paper/electronic trail). I wonder what Novell is thinking now. They paid one party for patent-peace (although got money in return) and it hasn't helped them.
Red Hat on the other hand is dealing with this correctly. They do not make deals with people that use maffia-tactics. But that doesn't make them any stronger.
Maybe Microsoft paid Novell 384 million dollars to sit through this attack, while Red Hat goes under ? Wouldn't that be an interesing point of view ? Maybe Novell settles for such an amount...
(At least this comment may have them think twice ? :P)
An additional note Posted Oct 13, 2007 6:58 UTC (Sat) by jfj (guest, #37917) [Link] Exactly.
Also there is a general problem that many open source people do not accept software patents. As long as developers don't care about patents the Microsoft-Novell deal is nothing.
The best way to make the MS-Novell deal real and consequently give an advantage to Novell wrt other distributions, is to show a case where open source software *is* vunerable.
First of all, they have to show that software patents
Obviously, even Novell will have to pay some minimal patent fees in this case. But think of the profits latter!
An additional note Posted Oct 13, 2007 2:21 UTC (Sat) by daniel (subscriber, #3181) [Link] "Your editor thinks that a focus on Microsoft is truly misplaced here. There's no shortage of patent trolls willing to pursue this kind of action on their own..."
Your subscriber respectfully disagrees with you, Jon. This is nothing less than a proxy war declared by Microsoft, the only possible conclusion that a reasonable observer can draw from the miraculous synchronicity of Steve Ballmer's public warning to Red Hat and the filing of the suit a few days later.
Elephant. Rug. Don't kid yourself.
Regards,
Daniel
An additional note Posted Oct 13, 2007 2:59 UTC (Sat) by sepreece (subscriber, #19270) [Link] "the miraculous synchronicity of Steve Ballmer's public warning to Red Hat and the filing of the suit a few days later"
Yeah, but how many times in the last year has Ballmer or another Microsoft leader raised the patent issue with no coincident lawsuit? And tech industry executives move around all the time. Sure, these things could all be tied together, but I think the odds are as good or better that it's just coincidence.
An additional note Posted Oct 13, 2007 3:21 UTC (Sat) by felixfix (subscriber, #242) [Link] There's also the fact that lawsuits of this kind take a while to draft, so this is not just a case of a company made bold by Balmer's inflammatory harangue and filing suit mere days later. Well, unless the previous claims had already prepared the lawsuit... But if Microsoft did have anything to do with it, there must be some kind of email or paper trail, or at least coincidental travel itineraries to dig up during discovery ...
An additional note Posted Oct 17, 2007 10:21 UTC (Wed) by daniel (subscriber, #3181) [Link] "Yeah, but how many times in the last year has Ballmer or another Microsoft leader raised the patent issue with no coincident lawsuit?"Two, maybe three, and never before with what amounts to a direct threat to Red Hat. Nowhere near enough to support the doubt you raised. As I see it, Steve Ballmer knew the lawsuit would be filed, and by extension, communicates directly or indirectly with the trolls. It's not like this would be unusual behavior for Microsoft, or perhaps you have not heard of Mike Anderer? News flash: Microsoft Bagman Mike Anderer caught red handed.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 13:54 UTC (Fri) by rlhelinski (guest, #48355) [Link] Reminds me of when Apple claimed it had the exclusive rights to window managers:http://en.wikipedia.org/wiki/Apple_Computer%2C_Inc._v._Mi....
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 14:02 UTC (Fri) by ketilmalde (guest, #18719) [Link] I tried to read the patent, and what I learned was that, evidently, a patent is a text that is as long, impenetrable, and ambigous as possible. This enables the patent holder to litigate just about anybody, and lawyers to earn their ludicrous salaries debating what exactly constitutes a "workspace".
This particular patent covers the case when two "workspaces", which apprently is something that can contain "display objects", with the restriction that said "objects" must have "spatial relationship relative to each other". (I don't see how you could display anything *without* a spatial relationship, but never mind). Oh, and you need some "linking data strucure" in there, and some means to switch between "workspaces" on the display.
So, I don't know, a sticky window (that displays on multiple workspaces) probably applies, and perhaps showing the same directory in two file system browsers. Heck, instant messaging would arguably count, and perhaps even SMS - the same text "display object" is shared on two "workspaces".
As an aside, I find it quite amazing that it is possible to write 62 quite elaborate paragraphs on a system, and still leave the reader wondering what on earth these people are trying to convey. But, hey, it's IP law, it's not there to make sense, it's there to make money.
However, the abstract says something about having two "workspaces" "appear to share a window" - I guess an engineer wrote that, and the lawyers just missed it. Okay, somebody already figured out how to show something on a screen, but, guess what, it's also possible to show the same thing twice! Thanks to the inventors for this fantastic and imaginative and nearly selfless contribution to mankind.
Oh, the patent was filed in '87, but granted in '91. Probably some consequences for prior art.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 15:15 UTC (Fri) by branden (subscriber, #7029) [Link] 1987 sounds like a year late and a dollar short.
A. Henderson and S. K. Card, `Rooms: The use of multiple virtual workspaces to reduce space contention in a window-based graphical user interface', ACM Transactions on Graphics, 5(3), 211-243 (1986).
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 17:49 UTC (Fri) by deck (guest, #19755) [Link] The date looks as though it is May of 1986. This therefore would not constitute prior art as the two persons that gave the paper are two of the "inventors" on this patent which was file in March of 1987.
And I will say RATS!
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 13, 2007 15:46 UTC (Sat) by ordonnateur (guest, #6652) [Link] So this patent was filed in 1987 for something revealed i n a paper published 1986? Now I know we are talking US patents here which, as it is considered possible to patent software, are self evidently stupid; but, my understanding is that patents everywhere are for a limited time and this one appears about due to expire, and (ok US is probably different) but in UK law if you breathe a word of your 'invention' to anyone but a patent agent, let alone publish in a journal, your claim to a patent is invalid.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 13, 2007 22:26 UTC (Sat) by pjhacnau (subscriber, #4223) [Link] IIRC in the US you have 12 months of grace period after publication to file for a patent. That was (one reason) why you had the RSA patent in the US and nowhere else in the world.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 18:28 UTC (Fri) by sepreece (subscriber, #19270) [Link] "perhaps showing the same directory in two file system browsers"
At a guess, not this one, unless the browsers were showing the same display object (i.e., were driven off the same graphical elements), as opposed to the same storage structure. That is, opening two browsers on the same subject would be further from what the patent describes than opening one browser and showing it in two windows.
But this is all guessing...
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 22:29 UTC (Fri) by drag (subscriber, #31333) [Link] You can read it for yourself.
http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&...
Keep in mind that the patent language is divided up into several sections.
The first section is the 'abstract'... The abstract is a general overview of what is held in the patent.
But remember, it's JUST A OVERVIEW. It's not realy what the patent is about and arguing or examining anything in the abstract is totally worthless. It's ment specificly to be generic and easy to understand, but have no real meaning.
The import part is the next section which is called the 'Claims'.
That is the 'meat' of the system. You only have to violate a single claim to violate the patent, if I understand it correctly... Although this patent seems rather insane.
IANAL
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 12, 2007 22:31 UTC (Fri) by drag (subscriber, #31333) [Link] In fact the patent is completely insane. It doesn't make sense... anybody that let this past them had to be a moron.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 13, 2007 3:34 UTC (Sat) by sepreece (subscriber, #19270) [Link] I do know how to read a patent, I just haven't read these in any detail.
However, I don't know why you say they don't make sense. They describe a particular user interface system and claim the elements that make it up. Based on a quick look, I didn't think the descriptions were particularly hard to read by patent standards.
The work this is based on was interesting and innovative. I remember reading about and playing with Rooms back when it appeared. The work was done by very smart people in a very innovative environment and I don't see any reason to assume a priori that the work wasn't inventive in the sense required to grant a patent.
Now, this suit is trying to apply the patents to something quite different from Rooms, arguing that the claimed elements are infringed by some aspects of the window system in the respective Linux systems. After a quick look at the complaint, I wasn't particularly convinced by the specific items they cited (claim 1 of '412, claim 3 of '183, and claim 1 of '521). The claims in '521 and '183 actually sound like they're talking more about the hardware implementing the UI than the UI itself. But, I don't claim to be an expert in the area or to have read a lot of patents in the area.
I sat in the jury for a moot court patent litigation once (my daughter was in the class and on the team arguing for the plaintiff). Patent trials are typically around whether or not infringement occurred - whether the defendant product actually infringes the claims of the patent - with a lot of incredibly detailed testimony about the nature of the claims and the ways in which the allegedly infringing product matches them, with the goal of convincing a jury carefully selected to know nothing about the technology. Believe me, the arguments to the jury will be nothing like as hard-to-understand as the patent itself; they will be reduced to very clear comparisons of features. It's certainly within the realm of possibility that a jury could be convinced on this one.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 13, 2007 7:09 UTC (Sat) by drag (subscriber, #31333) [Link] I am sure that it's makes some sort of sense. It's still insane though.
And if they do win a patent suit against Redhat it will be a tragedy of justice. It will be a victory of a group of asshats who don't produce anything or do anything constructive for anybody except themselves versus people that provide products, software, and support (as well as innovations) that are actually usefull for something by the majority of people. And not only do they provide this in order to make a living they also provide it in a manner that is absolutely able to be used by anybody freely for pretty much any purpose.
(ps: I had the same attitude with Eolas vs Microsoft. Eolas should of lost and lost hard. It was horrible that Microsoft lost that suite and those Eolas people should of been sued themselves for just plain being huge dicks.)
THATS why it's insane. It's insane because it's convoluted and it's insane because such a thing should not exist in the first place. It leaves a bad taste in my mouth.
Simple, easy solution Posted Oct 13, 2007 15:36 UTC (Sat) by tony (guest, #3654) [Link] The easiest fix to the patent mess is to throw it out. I don't think the "innovation without patents is impossible" argument holds any longer, if it ever did.
However, there is a simpler solution to the threat of patent trolls.
Make patents non-transferable, and only grant them to the individuals who apply for them. (Personally, I believe only individuals should be granted copyright and patents, anyway, and only corporations should be granted trademarks. But that's just me.)
Non-transferable, non-corporate grants for both copyrights and patents would go a long way to reforming the system, and bring it in line with the intent of limited government-granted monopolies.
Simple, easy solution Posted Oct 14, 2007 0:12 UTC (Sun) by sepreece (subscriber, #19270) [Link] Non-transferable patents don't work because an individual inventor is unlikely to have the resources to bring the invention to market and corporations that do have the resources want to own what they invest in.
[Again, I'm not happy with the patent system as-it-is, on a number of issues, but I do think that some patents are justified...]
Simple, easy solution Posted Oct 15, 2007 19:31 UTC (Mon) by tony (guest, #3654) [Link] Want in one hand....
If the system were set up like that, corporations and patent holders would come to some sort of agreement. This doesn't stop exclusive deals and whatnot. It just curtails the formation of patent trolls, who purchase up patents with the sole intent of litigating.
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 13, 2007 15:52 UTC (Sat) by sepreece (subscriber, #19270) [Link] Well, presumably the inventors got paid for their invention (I guess they probably got paid by Xerox and Xerox later sold the patents). The argument in favor of this model is that innovation needs to be stoked by investment; if you can't get a return on that investment, the rate of innovation would be lower. So, even though Xerox didn't manage to create successful products that leveraged this invention, the possibility of selling the invention itself was a justification of investing in creating it. The trolls don't do anything productive themselves, but the existence of people willing to buy inventions does encourage companies to pay productive people to innovate.
You still haven't said *why* you consider this patent to be insane. From a quick read, it seems to identify something reasonably specific and to have been filed at a time when that something might have been reasonably inventive. Or is it that you think that the whole principle of software patents is insane?
[Note that I DO think it's bad policy that a software idea invented in 1986 should still be covered by a patent in 2007. The barrier to creation of software inventions is low enough that the duration of such patents should be much more limited than in fields where the barriers are much higher. If, of course, software patents serve any public purpose at all, which is highly debatable. One could easily argue that the barrier to software invention has today dropped to a point where it's silly to grant patents.]
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 14, 2007 8:58 UTC (Sun) by oak (guest, #2786) [Link] The time a patent is valid is insane indeed. There are some things thatcould be done to limit frivolous patents and patent trolls.
I think the reason for the large number of patents is that for patent
Then to patent trolls... For a patent violation claim to be valid, the
Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw) Posted Oct 14, 2007 18:27 UTC (Sun) by sepreece (subscriber, #19270) [Link] There's an interesting analysis of patent policy in the current CACM (<http://portal.acm.org/citation.cfm?id=1290961&coll=AC...>)
The authors look at the interaction between public benefit and variations in the duration of software patents, the difficulty of getting one, and the barriers to use of the idea by others during the life of the patent. I'm not sure they caught all of the factors, but the analysis is interesting and the conclusions are worth reading. They think long durations are OK if the barriers to patents are high enough (patents have to be good patents) and their are reasonable options for competitors.
Their final conclusion is that the difficulty and data requirements for figuring out the optimal policy argue for just not having software patents at all...
I tend to think that unless they radically raise the bar for getting a patent, the term should be much shorter. The idea of statutory mandatory licensing is also interesting, but fraught with complexity in determining what reasonable terms would be.
I also think that the free-software movement is itself [without referring to its philosophy at all] a powerful argument against the value of software patents - the fact that products implementing software innovations can be brought to market by free-software projects with little or no capitalization argues strongly against the idea that inventors need protection to earn a reasonable return on the cost of bringing the invention to market.
Broken patent system Posted Oct 15, 2007 0:14 UTC (Mon) by bojan (subscriber, #14302) [Link] This lawsuit itself points to big problems in the U.S. patent system, because:
- licensor itself isn't using the patent for anything useful
Put differently, if there were no people implementing this idea, the licensor's contribution would be exactly zero. They could have sued (if this patent was so important to them) various people _way_ before, but they held off until Red Hat and Novell had the money to pay. And finally, this patent is old news and it is the people coding this idea that actually had to put effort and money behind it, so rewarding inventors for this now makes little sense.
In the end these are the possible outcomes:
- RH/Novell spend money on something inventors never wrote
I don't see how any of the above is contributing to progress and I especially don't see why the inventors should be rewarded for this 16 years after their invention has been patented, in a field that churns out new versions every few months.
PS. In Australia, patents on software are encouraged by the relevant government body (IP Australia), so the situation isn't much better here either.
Broken patent system Posted Oct 15, 2007 12:54 UTC (Mon) by sepreece (subscriber, #19270) [Link] While I agree that there are problems with software patents, I think your list of objects is off-the-mark:
(1) They ARE doing something useful with the patent - they're licensing it to people who want to implement it. Would you criticize ARM because their designs are licensed to other people rather than fabbed in-house?
(2) Not sure what you mean by "last possible moment" - they've been litigating these patents against various parties for years; few companies want to maintain large numbers of patent suits in parallel - they're a lot of work and cost.
(3) "they are only targeting deep pockets" - well, duh. Not a lot of point to suing people who can't pay.
(4) I agree patent terms are too long. However, there's a reasonable argument that a patent that is the basis for a lot of extension and refinement should be protected while that's happening. No idea is innovative after it's been thought of, by definition.
(5) No idea == no implementation or delayed implementation. It cost money to create the environment that led to this idea; Xerox ultimately recouped some of that money by selling the patents. I think it's fair to guess that the modern GUI would have evolved if PARC hadn't existed, but it would have been delayed.
As I noted previously, I think that open source has significantly changed some of the argument for software patents - the notion that it takes a lot of investment to bring a software idea to practice or to bring it to market is harder to sell, today, than it was 30 years ago, when the current patent rules were largely formed.
Broken patent system Posted Oct 15, 2007 22:06 UTC (Mon) by bojan (subscriber, #14302) [Link] About 1, if that were true, they would have attempted to license (or sue) people distributing XFree86, Gnome and KDE 10 years ago. So, they aren't doing anything useful here - they are just waiting until the last moment to extort money.
About 2, see 1.
About 3, if you own a trademark for instance, you must threaten/sue even people that don't have deep pockets. And the system is still alive and well (and a lot fairer). Oh, and you must use the trademarks yourself.
About 4, the term of software patents is about 20 years too long :-) I still recall the idiocy of XOR patent that Autodesk had to pay for.
About 5, in a world without software patents, Xerox could have created a reference implementation instead (which _is_ actually a lot of investment) and sold that to implementers. The folks licensing that would then still have the first mover advantage, while imitators would have to wait for a while to do their own.
The point is, in software, copyright combined with trade secrets offers enough protection to keep innovators ahead of imitators. There is really no need to impose a 20 year monopoly in a field where things change every month, as it doesn't contribute to anything.
The market appears unimpressed Posted Oct 12, 2007 17:46 UTC (Fri) by JoeBuck (subscriber, #2330) [Link] Red Hat's stock is now trading at a hair over what it closed at yesterday. There was a slight dip between 10 and 12 PM New York time, so perhaps a few nervous people sold, but it looks like even more folks saw it as an opportunity to buy.Patent suits typically take years, and it looks like there may be a lot of prior art for this one.
Best strategy Posted Oct 14, 2007 15:17 UTC (Sun) by chel (guest, #11544) [Link] Best strategy: countersue for damages, and make the tial long and costly. That is the best way to handle this kind of sharks.
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