We have been hearing the warnings for years: sooner or later, software
patents were destined to be used against free software. When dire warnings
are repeated over a long period of time, it can become easy to shrug them
off and assume that nothing will ever really come of them. But complacency
does not make the problem go away. And now we have, in the form of a
lawsuit filed against Red Hat and Novell by IP Innovation LLC, a reminder
that the software patent threat is real.
Three patents are named in the brief complaint [PDF]:
"User interface with multiple workspaces for sharing display system
objects". Filed in March, 1987.
which has the same title. Filed in February, 1995.
again with the same title. Filed in May, 1993.
As might be imagined, the three patents all read about the same. Those who
are not afraid of patentese can get a feel for what has been patented by
reading the first claim of #5,072,412 - one of the claims alleged to be
violated by the defendants:
A system comprising:
- a display;
- first and second workspace data structures relating respectively to
first and second workspaces that can be presented on the display; each of
the first and second workspaces including a respective set of display
objects; each of the display objects being perceptible as a distinct,
coherent set of display features; the display objects of each respective
set being perceptible as having spatial positions relative to each other
when the respective workspace is presented on the display;
- display object means for generating first and second display objects;
the first workspace data structure being linked to the display object means
so that the first display object is in the respective set of display
objects of the first workspace; the second workspace data structure being
linked to the display object means so that the second display object is in
the respective set of display objects of the second workspace; and
- control means for accessing the first workspace data structure to
cause the display to present the first workspace including the first
display object; the control means further being for accessing the second
workspace data structure to cause the display to present the second
workspace including the second display object; the display object means
generating the first and second display objects so that the second display
object is perceptible as the same tool as the first display object when the
second workspace is presented after the first workspace.
This claim seems like a fairly straightforward description of a window
manager which provides multiple virtual desktops. It does not take a whole
lot of imagination to extend this reading to describe the behavior of two windows on
the same desktop. Finding software within a Linux system which can be said
to infringe upon these patents is probably not all that hard to do.
Eliminating all code which could be said to infringe, instead, could be
difficult indeed. (Bear in mind, though, that your editor is fortunate
enough not to be a patent attorney; anybody needing a definitive
interpretation of this patent should consult people who know what they are
The defense against this attack will require either (1) the location
of sufficient prior art to invalidate the patents, or (2) an argument
that, by the allegedly tightened definition of "obviousness" in the U.S.,
the technology patented is not sufficiently innovative. Red Hat and Novell
have not shared their defensive strategy with the world, and they are
unlikely to do so in the near future. We will almost certainly have to wait and see how
they answer the charges in court.
As an alternative, the two companies could pay the troll in exchange for an
agreement allowing the patented technology to be used in GPL-licensed
software. Assuming an agreement could be reached, this approach would
solve the immediate problem. But it would also encourage every other
patent troll out there to head to court in search of a turn at the trough.
It would be far better to defeat this attack if at all possible.
Regardless of how this case plays out, though, we can be sure that it will
not be the last. There is no shortage of software patents in the U.S. and
no shortage of lawyers willing to turn them into lawsuits. The system
encourages this sort of litigation.
For this reason, your editor feels that the current focus on finding links
between this suit and Microsoft is misplaced. It may well be that
Microsoft is lurking in the shadows somewhere, directing the entire
operation. Your editor has no way of knowing. But there's a couple of
things which should be kept in mind when trying to make that connection.
The first is that Microsoft's presence is in no way necessary to explain
this series of events. Patent trolls are not in short supply, and neither
are patent infringement lawsuits. It was a certainty that one of these
trolls was going to turn its attention to free software companies sooner or
later. IP Innovations, owned by well-known patent troll Acacia, is no
stranger to this sort of litigation; it could have easily decided on this
course of action on its own.
Second, it's not clear that this attack, at this time, is in Microsoft's
interest. For all the talk of the safety provided by Novell's purchase of
a patent non-license from Microsoft, Novell, too, has been sued. No users
have been sued, but, should the plaintiffs decide to target Linux users,
Novell's customers will be just as exposed as Red Hat's customers. Any
other company which might be considering the purchase of a "covenant not to
sue" from Microsoft need only look at this case to see that the covenant
has not solved the problem: the company which bought the covenant is in
the same position as the company which refused to do so. This attack can
also only serve to clarify the problems with software patents in parts of
the world which do not currently allow software to be patented.
In other words, this lawsuit has driven home the fact that, with regard to
software patents in the U.S., Microsoft is not the problem. Microsoft's
own experience on the receiving end of patent infringement lawsuits should
also make that clear. Whether or not Microsoft is behind this suit, the
real problem is the current software patent regime in the U.S. and the
litigation-friendly environment which supports it. If Microsoft were to
vanish tomorrow, the threat would not be reduced in any appreciable way.
So putting the focus on Microsoft is a mistake; we have a much bigger
problem than that.
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