Patents, Red Hat, and Hibernate

Updated [30-June-2006, 14:45]:  Jan Kechel has created a website which is dedicated to collect prior art against this patent, but I didn't want his work lost in the comments. Please see: http://helpredhat.dyndns.org

News is breaking on claims by Firestar Software that JBoss (now Red Hat) infringed a particular patent in the Hibernate 3.0 software release.  Hibernate is an open source project started by JBoss and forms part of their JEMS product suite. 

• There's a good summary here with reference to the tactical timing of Firestar's attacks, and appropriate pointers to the claims and prior art debate that will rage.
• Bruce Perens has commented here, and once more argues that patent reform is the only thing that will save software from software patents. 

I participated in a panel discussion on the future of open source and IP hosted by SDForum in January.  The consensus of our group (mostly lawyers with a lot of experience in IP law and open source) was that the business economics of the situation would actually prevail before legislative change in a system constrained by deep pockets in other industries with different dynamics and entrenched views.  A few messy law suits, and rulings similar to the recent U.S. Supreme Court decision on damage and injunctions, and companies will begin to realize that software patents make bad business investments, and they will spend their dollars on more urgent and important things. 

This current lawsuit will run its course.  The other organizations that have open source patent protection mechanisms (e.g. The Open Invention Network, and the Patent Commons Project hosted by the Open Source Development Labs) will get to test and tune their organizational responses.  Microsoft will make statements about the value of intellectual property, and quietly fret about the lawsuit's outcome. Stories and counter-stories will be told. 

The most important thing to remember is that a patent is just a ticket to a negotiation.  Firestar may have thought it was going to be clever and make some quick cash on this suit in its timing.  One doesn't even need to ascribe malice and malevolence (or Microsoft as was suggested in one report) to the plaintiffs. 

I've been in enough executive meetings to virtually hear the discussion that would of ensued over whether or not this investment (i.e. the patent) was or wasn't viable, and whether or not it should or shouldn't be used and defended, and where the (fiduciary) responsibility lay.  Lawyers would be hired (increasing the investment) and the decision made to "see what happens."  Especially if Firestar's business is in a bit of a slump.

As was pointed out, however, Oracle and BEA and possibly even IBM and Sun (through the effects in the Java Community Process and the Java Persistence API) may have an interest to defend here.  Certainly IBM and Oracle would like to see Red Hat continue to thrive and prosper, even if BEA and Sun interests are merely defensive. 

These other companies need not even name themselves to the suit, but may start quietly helping in the background. Firestar's legal team may discover it is up against a far nastier negotiation than they anticipated, and regardless of their belief, opinion, and advice, the Firestar executive team may not have the stomach to fight if it means throwing considerable more money at the "investment" in the patent, or the negotiation.  SCO Group's "business" might be a law suit, but Firestar's may actually still be software, and their responsibility to invest in customers and products may quickly become more clear. 

Depending how creative Firestar's executive team is and how the product is structured, they could even turn this into a PR win by joining the community and broadening their customer engagement through selective participation in open source projects, rather than spending money on litigation.  This of course makes huge assumptions about how much imagination is left at Firestar. 

In all of this I remain fond of David McGowan's quote from the end of his May 2005 presentation (and paper) at the University of Toronto:

“If the F/OSS community wants to be in the commercial space, community members will have to learn to deal calmly with IP litigation.  The F/OSS production model will work where it makes sense, and it will not work where it doesn’t.  It’s really just that simple. Particular claims in individual suits—even one against a flagship program such as the GNU/Linux OS—will not determine the fate of the community.  Such cases present factual issues that will get resolved one way or another; they do not represent a crisis for F/OSS production as a whole.  Norm entrepreneurial rhetoric that plays off such cases should be treated as entertainment.  Enjoy it if you like it, take inspiration from it if you must, but don’t confuse it with the way things actually get done.”

Other patent related posts on this blog:

• A patent is merely a ticket to a license negotiation (Feb 2005)
• Corwin's Razor and the OASIS IPR Policy (Feb 2005)
• An Interesting Juxtaposition of Microsoft and Patents (Mar 2006)
• Massachusetts, Microsoft, and Open Document Format Standards (Sep 2005)
• IBM, Patents, and Open Source Software (Jan 2006)
• More on Open Source Risk Management and Licensing (May 2006)
• Open Source Software Business Models at USENIX (Jun 2006): This is the audio from the panel discussion with comments on software patents by myself, Mike Olsen (Oracle/Sleepcat), Miguel de Icaza (Novell/Ximian), and Brian Aker (MySQL) in the middle MP3.

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Comments

[Jan Kechel]

Hi,

I created a small website with MediaWiki, which is dedicated to collect Prior Art against this patent. This will help Red Hat and might prevent the same patent from beeing issued in Europe, Canada, Japan and other countries.

Let's show the world that this wasn't a new invention in 1998 !

http://helpredhat.dyndns.org

[Wesley Parish]

Well, FWLIW, one should remember that magic phrase "Intellectual Property", by which various have assumed meant they could do whatever they liked.

There's a universal property law of the sea that may well apply in the case of software patents - the maritime law of salvage.

A threat to navigation and maritime trade is not permitted; a threat to navigation and maritime trade that is the result of the abandonment of a vessel is worth up to the entire cost of the said threat to navigation and maritime trade, to the person that salvages it and returns it to port.

Since software patents are a real and present threat to internet navigation and the software trade, I believe a case could well be made for extending the extensive maritime salvage and law of finds case law to software patents. What this means is that Firestar would be treated as a threat to internet navigation and the trade thereon, to software development and the trade therein, and is therefore forfeit to RedHat and its subsidiary JBoss.

Maybe if enough people talk about this idea to their local friendly lawyers, we might see some serious action.