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,
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
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
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
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:
Lawyers tend to be conservative by virtue of
their professional training and inclination. Any time you talk about saying
something public about a lawsuit, lawyers are hesitant. That's our
nature. So that's something we had to think about pretty carefully, whether
there was some aspect of enlisting the community's support that could be
harmful to the case.
In the end, Novell and Red Hat decided that the advantages outweighed the
potential hazards. "The principle reason," Lundberg says,
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:
...that we will help to show the power of the open
source model in a different context. As lawyers for this company, we're
very conscious of the fact that when we work with the free and open source
community, amazing things happen. We build better products and we also
learn about technologies and other aspects of our business that we wouldn't
have done otherwise. So, it's very much in accord with our overall mission
here at Red Hat to try to work with the open source model and to work with
the open source community in creative ways.
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:
I don't want to talk too much about the
particulars of the case. We've got experts who are advising us in regards
to the technology issues, but that involves strategies that we have to
develop internally before we talk about them publicly. It's a fine
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."
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