Novell and Red Hat ask community help in patent case

In any legal case, the conventional wisdom is that you should say nothing outside of court. However, in the patent infringement case IP Innovation LLC et al vs. Red Hat Inc. et al, Red Hat and Novell have chosen to ask to the free and open source software (FOSS) community for help in finding prior art — that is, evidence that might disprove the validity of the patents involved. The decision, says Rob Tiller, vice president and assistant general counsel, IP, for Red Hat, is a mixture of practicality, experimentation, and diplomatic relations.

The case was filed in United States District Court for the Eastern District of Texas, Marshall Division, on October 9, 2007. IP Innovation is a subsidiary of Acacia Technologies, which has filed over 239 infringement cases since 2003 — almost three times as many as any other company. The infringement claim alleges that Red Hat's and Novell's GNU/Linux products infringe U.S. Patent Numbers 5,072,412, 5,533,183, and 5,394,521. All three patents involve the use of graphical multiple or virtual workspaces on the desktop, a feature common to most popular desktops, including GNOME, KDE, and Xfce. See this LWN article from 2007 for more information on the complaint.

For the past sixteen months, the case has ground onwards. According to Tiller, the case is currently in the stage known as claim construction, in which the court attempts to define the patents and the terms they use. Now, with deadlines for submitting prior art approaching in March, Red Hat has posted a request for aid from the community on Post-Issue Peer to Patent. Specifically, the request is for prior art from before 25 March, 1986, the year before the patents were filed.

This is not the first time such a request has been made. Last year, Barracuda Networks made a similar request to the community in its case against Trend Micro. Tiller, though, had apparently not heard of this earlier effort.

So far, the request has produced over 20 responses, as well as over 125 beneath the Slashdot link to it. If these responses prove valid, they could be used to discredit the patents on the grounds that they were either unoriginal or too obvious to have been granted, or that the claimed techniques had previously been invented elsewhere — two classic strategies in patent infringement cases.

As it happens, the request is a tactic agreed upon both Novell and Red Hat. Both companies are represented in the case by law firm Gibson, Dunn, and Crutcher, and are coordinating their defenses. "This whole thing is done with Novell's agreement," Tiller says, even though Red Hat was the company that actually file the request on Post-Issue. Jim Lundberg, VP Legal at Novell agrees. "Essentially, it is a joint effort by Novell and Red Hat. Both Red Hat and Novell are working closely together in defending against the patent litigation that was filed."

Neither explained why the request was posted to Post-Issue by Red Hat alone. However, given Novell's unpopularity with some of the community because of its agreements with Microsoft in the last few years, perhaps those involved calculated that a request from Red Hat alone would stand a better chance of receiving useful answers.

Certainly the idea seems to have carefully calculated from every other angle before being implemented. Acknowledging the unusual nature of the request, Tiller says:

In the end, Novell and Red Hat decided that the advantages outweighed the potential hazards. "The principle reason," Lundberg says, "is because of the background and the input that [the community] can provide — the wealth of knowledge that exists out there."

A secondary reason for going public, says Tiller, speaking as a representative of the Red Hat legal department, is that the request is consistent with open source methodology and corporate image. By making the request, he hopes:

Part of that decision, Tiller adds, is to keep the contributions available to the public. "We considered carefully whether we should drop the information in a locked box where no one else could see it" — a possibility that might have prevented IP Innovation from being pre-warned of the evidence that the defendants might use. However, in the end, Tiller says, "we decided that would be contrary to the spirit of free and open source collaboration, that it would be important for people to see what others had done, and what others' insights were."

Still another consideration is that sorting through the replies for prior art will require extra work in the few weeks left before final submissions. But, although replies are still arriving, the preliminary results seem promising. "We believe that they've been helpful," Lundberg says tentatively.

Similarly, Tiller says, "In fact, we think there are likely to be a good deal of antecedents that have a bearing on the claim in these patents, so we expect to see a variety of ideas." At this point, though, he says, "We don't want to inhibit the discussion. We're looking for as many ideas as we can get."

Having already taken such a large and nontraditional step, Tiller and Lundberg seem reluctant to say much more about the case. Although Tiller admits that the Red Hat legal department is keeping other lawyers with FOSS expertise informed, he says:

That said, the defendants in the case sound reasonably optimistic. "We feel very strongly about our ability to prevail in this case," Lundberg says. "With the assistance of the open source community, we think that potential is even stronger."

Echoing these sentiments, Tiller concludes: "We feel we have have good, strong defenses against the infringement claims already, but we really think that this is an opportunity for us to participate with the community, not only in opposing the particular entities that are attacking Linux here, but also in developing a body of experience that will guard both us and the community in the future."