Acacia Patents, Red Hat, and Novell

Groklaw reports a patent infringement suit has been launched against Red Hat and Novell over Linux.

Take a deep breath. Be calm.

When the SCO Group suit was first launched, I was still at Microsoft. A number of people in the strategy team where I worked were excited because "finally the free and open source world was going to understand the importance of intellectual property." (These Microsoft employees didn't appreciate exactly how careful the community is about IP.)

I pointed out the following logic back then: IBM was investing a billion dollars in Linux. IBM could therefore allow a certain amount of legal debate to occur to determine how real a case SCO Group may or may not have had. A few millions in legal fees pales in comparison. In an absolutely worst case scenario, IBM could acquire SCO Group for O(US$150M) or less after a couple of years of legal punishment and the problem would go away. Again, a few millions in legal fees would be a cheap exploration. The SCO Group suit was NEVER a threat to Linux growth and deployment. Did the FUD slow the adoption curve, no doubt. But did it make any material difference in the use and growth of Linux? Hardly. And it's over now.

Microsoft should itself understand this business calculus around IP. They offered a lot of money to settle the Eolas suit. Eolas got greedy and refused the settlement. They "won" a half billion dollars in court. Now, when you're about to pay out a half a billion dollars, you can afford to spend a few millions more contesting the decision. Indeed, with that sort of money at stake you can afford to hire the cream of the graduating classes of Harvard, Yale, and Stanford Law to spend some time getting creative.

The U.S. Supreme Court continues to involve itself in the broken patent system. The Linux Foundation and the Open Invention Network are both geared for this particular fight. I have confidence that the Groklaw community will step into the breach of reporting and investigation again. IBM, Intel, and HP have a vested interest in the outcome, and nobody plays IP games the way IBM does. Over the next few weeks, lawyers will come together behind the scenes from all the interested parties on the defending side. Hopefully egos won't be too large, and a coherent plan of negotiation will emerge.

Some of the more interesting questions for me will be:

• Why Red Hat AND Novell?
• Why not Microsoft? (Acacia went after Apple who settled. Microsoft would seem to have deeper pockets than Red Hat or Novell. It would seem to be the more interesting business discussion.)
• If Microsoft is not involved, should they be? If Apple settled, and then this suit settles, Microsoft should know they're next on the list. Or are they trusting IBM et al to win this one for them?

To quote one of my favourite lawyers in this space:

“If the F/OSS community wants to be in 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.”

I'm sure some former colleagues at Microsoft are excited. Mr. Smith and Mr. Ballmer most assuredly. But just as with the SCO Group litigation, there is no reason to celebrate. They shouldn't confuse this with "the way things actually get done." Pax.

Comments

[Asbjørn Ulsberg]

The most likely reason "IP Innovation" isn't going after Microsoft for patent 5,072,412 is that "IP Innovation" is a subsidiary of "Acacia" which during the last four months have hired two former Microsoft employees in their management staff; Jonathan Taub (former Microsoft Director of Strategic Alliances for the Mobile and Embedded Devices) and Brad Brunell (former Microsoft General Manager of Intellectual Property Licensing).

Don't bite the hand that feeds you, etc.

[Chris Ward]

Patent litigation (and blatantly-corrupt copyright litigation) dissuades learners from entering the field; and also dissuades established corporations from allowing their engineers to help in schools.

It's just not worth the commercial risk.

So, we're emptying the 'field' of the engineering talent which could keep the Internet together and could make progress.

As a society, we get what we pay for.