http://lwn.net/Articles/1251/

The cynical among us could even see this policy as a strike by Red Hat against a whole class of competing free operating systems. That is almost certainly not the case: Red Hat is just trying to ensure that its patent weapons can actually be used. As the company told us:

We elected to specifically exclude licenses that don't expressly prohibit open source code from being incorporated into proprietary code. Absent that stance, the patents would be of little benefit.

I don't see where is the source of this statement.

- You are not interested in open and direct talks - even though I offered full transparency with live streaming of our talk etc.
- You are not willing to send me your questions that have supposedly been sent to Rob Tiller. I did receive Mr. Henrions mail to Mr. Tiller, but as Mr. Henrion admitted, there is no question in his mail. Mr. Henrion promised me he would clarify that here, which he didn't do so far.
- You are seemingly interested in fueling a flamewar against Red Hat.

With all of that concluded, I still offer you to solve the questions in a direct way with a joint statement as a result.

However, I refuse to continue this flamewar where I am open and honest and you decide to hide under anonymousity, opening up new pages and new comments in a flurry of activity without offering the company you attack any reliable form of communication.

Jan Wildeboer

Presumably your own Mr Tiller can provide you with whatever questions he received.

As to a meeting… we are not interested in private off-the-record discussions and in truth, you would be speaking to the wrong audience. Speak to those who are not protected by your Promise: the users of FOSS, those building FOSS support and distribution businesses, those working five or ten years from now when Red Hat is the division of some larger firm.

Regarding Red Hat's submission that you linked to, please note these statements by Red Hat:

There appears to be general consensus that patents covering software that produce an observable effect in hardware should be permitted.

This is commonly called the "technical effect doctrine", is it not? The same technical effect Red Hat endorsed in 2005, and which basically allows most software patents, since it can and is interpreted in the broadest sense possible (e.g. changing the color of a pixel).

Although Red Hat favors the system as it now stands, if a Community Patent system is to be adopted, we believe the only logical approach is to have a single, centralized litigation system for European patents.

This reads like an endorsement of the European status-quo, which allows software patents (and which Red Hat claims), and an endorsement of the EPLA proposal, which the FFII has shown the dangers of.

Red Hat believes any system that permits widespread issuance of software patents will damage not only our business, but the entire software industry, and will slow the rate of innovation by reducing competition.

Emphasis added.

Now, to Red Hat's credit, they also argue consistently that software patents are undesirable and their patent portfolio is a necessary and costly evil:

Red Hat obtains patents only because others choose to threaten us with their patent portfolios, i.e., we obtain patents solely for defensive purposes. We make our patents available to others developing open source software on a royalty-free basis.

However we've seen serious questions raised about the solidity and legal standing of your patent promise. Even giving Red Hat full benefit of any doubt, we see a large number of patents claimed on software and business methods, not licensed but "promised".

We have collected the key concerns on a separate web page for ease of reference and we would welcome Red Hat's answers to these questions.

If it makes your job easier we will collect signatories to these questions.

http://circa.europa.eu/Public/irc/markt/markt_consultations/library?l=/industrial_property/patents/consultation_future/r_contributions/red_hat_inc&vm=detailed&sb=Title

Red Hat stated:

"We would far prefer a system that denied patents to software. We also observe
increasing tension between various industry sectors, particularly information
technology and pharmaceuticals, over the applicability and enforcement of patents.
These issues are rife within the U.S. patent system and are likely to become just as
problematic in any European patent system."

HTH

Jan Wildeboer

There was a debate around the Microsoft OSP, and a german lawyer confirmed this was not something you could rely on.

If Red Hat could bring evidence that it is different in other jurisdictions, that would be helpful for the clarity.

"No matter what Red Hat's actual intentions - and we have identified a series of conflicts, going back many years, between their stated intentions and the available evidence - as long as they make a Promise not to sue, rather than a license, their patenting activity creates a long term threat which surely they are aware of."

Lots of ifs and mights and stuff. Instead of direct talks. I have offered a few times now here to talk to me directly. I have not received any mail or call. I will continue to solve your questions even if this lack of communication makes it hard.

Again - would you mind to:

- Send me the FFII questions that have been sent to Rob Tiller
- Give me your contact details so we can set up a meeting in person - if you want with livestream to the Internet, I have nothing to hide, but I refuse to talk to people I do not know.

Jan

The URL is in the comment: http://www.h-online.com/open/The-Red-Hat-Patent-Problem-and-AMQP--/features/112899

The reason for mentioning Oracle was not to claim this was a confirmed report. The reason was to remind you that M&A is a major part of the IT sector and Red Hat cannot be immune to this. The risk that Red Hat's patents remain while Red Hat's promise and intentions disappear is real, and perhaps the underlying reason why there has been such hostility to Red Hat's patenting around AMQP.

No matter what Red Hat's actual intentions - and we have identified a series of conflicts, going back many years, between their stated intentions and the available evidence - as long as they make a Promise not to sue, rather than a license, their patenting activity creates a long term threat which surely they are aware of.

As for which side one is on: it is the acts, not the words, that we measure and take into account.

WRT oracle - Ms. Egberts used the word-by-word same story a few weeks ago to convince the world that Oracle buys VirtualIron - did that happen? ;-)

jan

The list of problems we have identified is quite clear. Would you prefer these to be drafted in the form of a formal open letter to Red Hat? I'm sure the FFII can organize that, and publish an eventual reply from Red Hat.

Consider this insightful conclusion from the Heise Online article, discussing the notion of "defensive" patents:

MAD only held a fragile peace, and if the weapons were ever used, the result would have been a scorched earth. It also required the participants to declare what weapons they had. Red Hat hasn't declared their arsenal of patents and patent applications. Is it time for Red Hat to come clean, declare their arsenal and return to working with the groups opposed to software patents and with the people involved in creating true open standards that can be used by all, without restrictions?

Clarity from Red Hat would be welcome. Few people will be interested in more unapologetic statements speaking of "FUD" and pointing us once again to insufficient promises and dubious trophies. OIN, p2patent: these do not speak in Red Hat's favour here, rather they point to the deliberate use of software patents for self-interest¹. The Promise, as I have explained in exhaustive detail, is less of a Promise and more of a Threat, if read with even a modicum of necessary paranoia. "Unless you publish your software under one of our approved licenses, we reserve the right to sue you. And even if you do, we reserve the right to sell other people the right to sue you".

At the very least, in the light of reports that Red Hat might merge with Oracle, the failure of Red Hat to provide irrevocable license to their patents is of profound concern. Even if we assume the best will at the highest levels of Red Hat, how can this be guaranteed for the future?

Having invested in software patents, it is incumbent on Red Hat to mitigate the threat they present, today and in 20 years' time.

Please read this good analysis of the situation.

We might have expected Red Hat, if they really had worked to any extent with the FFII and others against software patents, to be keenly aware of the extreme sensitivity of the issue. To collect patents around AMQP, to patent SOAP-over-CGI… these are not signs of an educated awareness of how serious this issue is, to European software developers, and to those in the Abolitionist movement worldwide.

Finally, regarding my comment about further investigations: Red Hat's patent portfolio is in the public record, insofar as they are assignee of the documents. We are currently examining Red Hat's business method patents, which are numerous.

I have just asked our legal team to clarify all your questions. Seeing that you already announce more unspecified attacks by saying "and there are more that I will be reporting on later" I would really prefer to get your list of questions sent to me via mail and please do publish that list wherever you want *if* you promise to also publish our reply.

I don't like flamewars, I prefer open and productive discussions. So tell me about your problems and listen to our reply.

Put the meat on the table.

jan

• The FFII tells me they have asked Red Hat for a comment and not received a reply.
• Red Hat's patent policy is well known to us and if it answered our concerns we would not be examining Red Hat's use of software patents.

We will re-iterate the problems that have been raised, and leave it to you to work with your company to find solutions:

1. Red Hat's promise is not a license: it is revocable, not global, and can be circumvented in many ways, to wit: via 3rd party licensing, by transfer of specific patent assets, by acquisition (nota bene recent talk of Oracle).
2. Red Hat's promise excludes FOSS software licensed under ASL, BSD, Affero, Perl Artistic License, and other licenses.
3. Red Hat's promise excludes closed source that builds on "infringing" libraries and frameworks.
4. Red Hat has acquired several dozen pure business method patents which exclude competition in the business of FOSS distribution and which fall outside the Promise.
5. Red Hat did not work with the FFII in 2005, and does not work with the FFII today. They did according our information work with the FFII from 2006-07 on the EUPACO conference.
6. Red Hat according to their own position papers worked for software patentability in Europe in 2005, when the written law exempted this.

This seems clear. Red Hat is acquiring a portfolio of patents that may well outlast its independent existence. By taking patents and not licensing them to all under the terms of GPLv3, they are making a clear statement that they consider these patents, rather the exclusion that they offer, a good investment for business reasons.

Let us take Red Hat's response, such as it has been:

• That their patents are for defensive purposes. Surely accurate, but to defend who from what, and how? Details, please. Otherwise we should assume they are to defend Red Hat from competitors, which includes FOSS businesses.
• That they are founders of OIN. Accurate, but irrelevant. This is not about protecting Linux to the detriment of all other software. It is about the open and free software market, no matter what the business model, the platform, the domain.
• That they will not sue FOSS developers. Surely accurate, but again irrelevant. We know that FOSS developers produce the meat Red Hat repackages, and mostly have no money, let alone a competitive business. Will Red Hat promise to never sue a user of FOSS even if that user builds closed source in-house applications?
• That they sponsor Peer-to-Patent. Accurate, to be certain. But in what sense does sponsoring the crowd-sourcing of patent examination contribute to the well being of the software ecology? How do more resistant software patents count as a good thing?

Note that the origin of this investigation was Red Hat's patenting of an obvious extension to the emerging AMQP standard. Further, you will have read my analysis of Red Hat's SOAP patent. We would be very interested to understand how either of these examples of "junk" patenting - and there are more that we will be reporting on later - can defend anyone except Red Hat investors and shareholders.

Mr Wildeboer, your reputation as a tireless campaigner is untarnished. However this is not a comment nor a criticism of your work as an individual. This is an examination of a firm's patenting activity and long term support for and investment in the very notion of software patents.

With all due respect, one cannot simultaneously keep slaves and claim to fight against slavery. There is a deep, cynical hypocrisy in such a position. Software patents are as much an ethical issue as they are a business one. You of all people should understand this and appreciate why your employer's position raises serious concerns in the FOSS community.

So again and again:

http://www.redhat.com/legal/patent_policy.html

Red Hat has consistently taken the position that software patents generally impede innovation in software development and that software patents are inconsistent with open source/free software. Red Hat representatives have addressed this issue before the National Academies of Science, the U.S. Federal Trade Commission, and the U.S. Department of Justice. Red Hat is also a signatory to a petition to the European Union encouraging the EU not to adopt a policy of permitting software patents. We will continue to work to promote this position and are pleased to join our colleagues in the open source/free software community, as well as those proprietary vendors which have publicly stated their opposition to software patents, in that effort.

One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes. Many software companies, both open source and proprietary, pursue this strategy. In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance. We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position.

Jan Wildeboer, Red Hat's EMEA Evangelist, known vocal opponet of software patents, member of FFII, part of the group that fought hard in 2005 against software patents, organiser of the Karlsruhe Linuxtag demonstration against software patents.

Contact me anytime at jan(dot)wildeboer(at)redhat(dot)com

Moves to change the EPC failed, so the patent industry and large software firms together with the European Commission pushed to create a law at the European Parliament (EP) which would have explictly allowed software patents in the largest economic block in the world, independently of any provisions in the EPC.

The FFII, FSF, and the small-to-medium software firms that make up 80% of the IT sector campaigned on a pure abolitionist platform: No Software Patents. The economic analysis of software patents made it clear, early on, that the benefits of software patents accrued only to their holders (patent trolls and large software firms), and those who profit from litigation, at a large cost to society. The US experience had already shown that software patents created litigation, slowed down progress, blocked competition, and were fundamentally incompatible with a fast-moving industry based on innovation and copyright.

At this time Red Hat had filed around 50 software and business method patents at the US Patent and Trademark office (USPTO), at the EPO, and at the WIPO. For example, EP1691276, "System and method for verifying compatiblity of computer equipment with a software product", filed in January 2005, and EP1659493, "Replacing idle process when doing fast messaging" (by Alan Cox). Today Red Hat as about 350 software and business method patents filed, indicating that their patenting activity has been consistent and growing.

The first Red Hat software patent filed at the EPO was EP1312195, "Method and apparatus for handling communication requests at a server without context switching", filed in 2001. Red Hat was thus at the forefront of filing software patents at the EPO.

The problem for clients of the patent system was that these EPO patents were not upheld by the national courts where infringements could be prosecuted. Specifically the UK upheld the original EPC interpretation that patents on software were not enforceable, while Germany generally tolerated software patents.

The European Commission was fully convinced by the arguments of large software firms, and the patent lobby, that without software patents Europe would be unable to innovate. The logic of the day was, "more patents means more innovation", despite the lack of any evidence to support this, and mounting evidence from the US of the contrary.

With such political pressure to open the doors to full patentability of software, the Abolitionists understood that compromise was not possible, and defined a firm, unambiguous position: No Software Patents. As a theoretical basis, they developed a set of "10 core clarifications" (10CC) designed to resist attack by patent attorneys. The 10CC were the basis of the Abolitionists amendments, which were presented in Parliament and gathered so much support that by June of 2005, at the second reading, the originally pro-software patent Directive had threatened to become a total ban on software patents. The pro-swpat lobby realized the risk, voted to reject the entire Directive, and switched to a number of backup plans, which today are still unrolling. According to parliamentary insiders, the Software Patents Directive was the most heavily lobbied directive of all time.

Of all the firms involved in the conflict, those involved both in the free and open source (FOSS) business, and involved in software patenting, were the most crucial. A large part of the argument against software patents was that it they were dangerous to the highly competitive and open FOSS sector and that this sector was key to European technological progress. IBM, Sun, Novell, and Red Hat were the main firms on both sides of the debate. Red Hat, the only one with a pure FOSS business.

While this climactic debate was happening, Red Hat defined their position with respect to the US and the European patent systems' treatment of software. Red Hat argued - as they have consistently before and since then - that the patent system was not working for software:

The licensing of software patents has become an industry unto itself… Today in the U.S. information industry, we are observing the building of an iron curtain of intellectual property.
The problem, in part, lies in the assumption that patent law, as presently applied to software, is infallible. … We have now established a patent system for protecting software that is failing to promote that progress.

However, when it came to proposing solutions, Red Hat rejected the Abolitionist position and endorsed the position of Microsoft's General Counsel, advocating improvements to the patent system to improve so-called patent quality:

Even Brad Smith, General Counsel of Microsoft, has called for a number of these reforms, as well as greater harmonization around the world. This is an area on which Brad and this author agree. Specifically, this author advocates:

• Non-diversion of PTO fees;
• Third-party participation in the patent examination process;
• Post-grant oppositions;
• Challenges to the validity of patents to be based on a "preponderance of the evidence," not "clear and convincing evidence" standard;
• Restoration of the once-strong non-obviousness standard;
• A higher threshold in finding willful infringement;
• A higher threshold before granting injunctive relief;
• Publication of all patent applications after 18 months;
• Harmonization with Europe to narrow the scope of what is patentable in the software and business method arenas as well as assuring the right to interoperability.

The Abolitionists viewed these "reforms" to be ways of reinforcing the patent system, and making software patents more, not less dangerous to the software industry. This echoes a common division of opinion. While the four firms cited invested in improving the patent system (to prevent devaluation of their own portfolios), the Abolitionists fought for the total end of software patents.

To clarify why: a single patent can demolish an small company, and if the patent is "higher quality", it becomes harder, not easier to fight. Eliminating junk patents leaves space for more resistant patents which can do more damage.

Red Hat endorsed the work of the European Commission, which was a forceful proponent of software patents, with little sympathy for small-to-medium sized firms, nor the FOSS economy:

There are, however, solutions available, both immediate and long-term, that are applicable in the U.S. and abroad. An early lead is being taken in Europe as the European Commission and European Parliament work to establish a uniform system for software patents (more properly, computer-implemented inventions) across the European Union.

And in this statement they endorsed the "proper" term "Computer Implemented Invention" (CII). The term is a clever circular definition designed to circumvent the EPC restrictions on software patents. An invention is by definition patentable, the terms "invention" and "patent" are largely interchangeable. The words "computer implemented" mean that the invention is not software (as such), it just happens to run on a computer.

Thus any party that accepted the terminology would accept inevitably that computer programs could be patented. "Software" became relegated to source code, and the EPO was able to argue that inventions that ran on computers (which could be patented) were fundamentally different from software (which as source code was adequately protected by copyright). By splitting off the "invention" from the "software" the EPO was able to bypass its own rules and allow patents on software.¹

One of the great successes of the Abolitionists was to recapture the terminology by getting the term "Software Patents Directive" into common use. In the propaganda war, whether one said "CII" or "software patent" largely defined one's position as for, or against, software patentability.

Regarding the details of the Directive, whatever its name, Red Hat did not argue for abolition. Instead, they argued for amendments to eliminate business method patents and promote software patents with a higher standard of obviousness. They also argued for protection for interoperability:

32 While the final result of this legislative process remains uncertain, what is certain are some of the amendments that are likely to be incorporated into the legislation. First is the definition of the term "technical contribution" as it is incorporated into the legislation. A narrow definition of this term, along the lines of its interpretation to date by the courts of Germany, will eliminate the vast majority of business method patents and will restore a substantial non-obviousness test to software patents. The second is the addition of a statutory protection of the right to create interoperable products. Should those amendments be adopted, the European legislation will have gone a long way toward addressing some of the more severe problems inherent in the U.S. patent system.

The Abolitionists regarded this as betrayal from a key firm that should have been firmly in the Abolitionist camp. Red Hat may have been arguing from a pragmatic position in which it seemed the Directive would pass. However, their statements provided ammunition for the pro-swpat camp and demonstrated that significant FOSS firms explicitly supported software patents.

Since amendments are voted on individually, there was no guarantee that the interoperability amendment would be voted, if their first also was.

While promoting amendments to harmonise software patents on the German model, Red Hat did also argue for changes to the patent system as it applied to software. They said:

At the same time, we should not assume that, even as modified and improved, the application of patent law to software is inherently the best or most logical means of protecting the interests of the developing party. Perhaps we should consider a new paradigm that is specifically designed for software and incorporates the best elements of both patents and copyright. Some characteristics of such a paradigm could include:

• a shorter term of protection (5-7 years would maintain the speed of innovation);
• protection only for complete systems or features, not components (avoids the trivial);
• strong protection (reward first movers);
• published source code (allows knowledge to advance); and
• interoperability.

It is a central tenet of the patent industry that there is a single patent system that covers all subjects. Any attempt to create domain-specific patent models is fiercely fought by the pharmaceutical industry, which fears the weakening of the patent system. So the above proposals were highly speculative and irrelevant to the Directive (and were not proposed in any amendments), with the exception of interoperability.

Even so, the Abolitionists regarded these as unacceptable. A 5 or 7-year patent, following several years of examination delay, would mean a 10-year block on competition in emerging areas of software technology. The "strong protection" cited, is code for "faster and more effective litigation". The avoidance of "trivial" components is meaningless since terms like "complete systems" and "features" cannot be firmly defined. And interoperability, while a valid goal in itself, does not protect independent re-invention.

It is worth understanding why the Abolitionists were so absolute, and so successful, in demanding "no software patents" while pragmatic firms like Red Hat aimed for a softer, more "realistic" middle ground. There are two insights which drove and united the Abolitionist movement.

First, the understanding that the patent system was fluid, and adapting to new opportunities in an organic fashion. From the point of view of a small software developer focused on new products and clients, or an economist, the patent system looks fundamentally parasitical. The growth of the patent system into software and business methods happened slowly, but methodically, through the redefinition of language and the infiltration of the political establishment with ideologies such as the perfection of the patent system, and "more is better". Once understood, it is easily predicted: the patent industry can overcome any barriers that are not absolute. There are no lines that can be drawn between the "good" and the "bad" software patents, that a determined patent attorney cannot cross, given time and money and a cooperative patent office.

This is why the Abolitionists unanimously and without compromise rejected all attempts to build such barriers out of terminology like "technical". And it is why they regarded with hostility anyone, especially lawyers, who proposed them.

The second key insight which drove the Abolitionists was the understanding of the economics of the patent industry. In its marketing, the patent industry claims to promote innovation and help small inventors. In reality, the patent industry is overwhelmingly tuned to the needs of its "clients": large firms and patent trolls. For both these classes, patents are sensible and economically worthwhile. Large firms mostly fight smaller competitors. Patent trolls build and defend a patent licensing business. The small-to-medium software developer finds themselves at the sharp end of the stick, with respect to larger patent holding firms. Trolls tend to attack large end users, and firms with too much money. But they can also attack SMEs, in markets where it is profitable.

Given that it is the large firms, and the lobbyists, who exert the most political influence, especially within the closed circles of the EPO, it seems inevitable that the patent system would and will evolve to provide the widest possible patentability, the strongest possible litigation, and the biggest profits for its clients, at society's expense. The US, often ahead by several years, provided a clear scenario of what could happen in Europe.

By 2001 Red Hat along with others like Microsoft and IBM were pushing the envelope on what could be patented in Europe, investing in lawyers to undermine the exclusions of EPC Art 52. Red Hat's statements must be understood in this context. As they took patents at the EPO level, they argued against abolition, and in support of "reforms" that would improve the value of Red Hat's own growing patent portfolio. While they pointed out problems with software patents, they did not turn this into political action. Instead, they endorsed the propaganda term "Computer Implemented Invention" and they lobbied for amendments that would legislate for, not against, software patents across Europe where the letter of the law still forbade them.

The FFII President Benjamin Henrion was in the European Parliament in 2005, collecting signatures for the amendments that would ban patents on software. He recalls, "I was in the EP. They did not helped us collecting signatures, going for interop instead."

The evidence thus shows that Red Hat, along with IBM, Sun and Google, did not campaign for an end to software patents in Europe, neither when that was within reach in 2005, nor today when it remains a reachable goal. Instead, they focused on:

• Trying to define distinctions between "bad" (business method) and "good" software patents, despite the fact that no such distinctions have ever successfully been formalised and upheld;
• Aiming to "harmonize" US and European patent law, which has invariably meant extending, not restricting, patentable areas;
• Aiming to "improve" the quality of issued software patents, despite evidence that "good" software patents do as much damage as "bad" ones;
• Lobbying for "interoperability" exemptions.

While interoperability seems a noble goal, in the context of these US firms, it means "Linux-to-Windows interoperability". Red Hat was thus working, together with Sun, Oracle, Google, and IBM, to establish US-style patenting of software while carving out enough space to protect their own Linux-based businesses.

Red Hat, instead of working with the Abolitionists to end software patents in Europe, was working to rewrite the law and remove the protection from patents that Europe's small software sector had enjoyed until then. While this seems normal and obvious for a firm that needs to answer to shareholders and investors, it is Red Hat's own statements that baffle us. If Red Hat seeks patents "to discourage patent lawsuits by giving us the ability to retaliate against potential patent aggressors by asserting counter-claims as a defence", why did they not work for abolition in Europe in 2005 and why are they not working for abolition in 2009?