An additional note

Posted Oct 12, 2007 17:22 UTC (Fri) by ajross (guest, #4563)
In reply to: An additional note by corbet
Parent article: Patent Infringement Lawsuit Filed Against Red Hat and Novell - Just Like Ballmer Predicted (Groklaw)

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 (guest, #19270) [Link] (5 responses)

"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 (guest, #4563) [Link] (2 responses)

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 (guest, #19270) [Link] (1 responses)

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 (guest, #43411) [Link] (1 responses)

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 (guest, #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 (guest, #43281) [Link] (1 responses)

> 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 (guest, #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.