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Please Indemnify Me From the Patently Obvious
By Kenneth Hess

July 15, 2008 —

Red Hat Inc., a major opponent of software patents and the largest commercial purveyor of Linux and open-source products, won a significant, but costly, victory for the open-source world in June. It settled another patent infringement lawsuit for us all. The settlement protects Red Hat’s customers with a fully paid, royalty-free, perpetual license for the products mentioned in the suit.

Suit and Settlement Summary:

In 2006, Firestar Software, Inc. sued Red Hat for allegedly infringing on its patent (U.S. Patent No. 6,101,502) for “interfacing an object-oriented software application with a relational database to facilitate access to the relational database.” Red Hat’s Hibernate product, which is part of JBoss, was the offending entity named in the suit. The patent was assigned to another company, DataTern, Inc., that became a third party in the suit. The settlement was between Red Hat, DataTern and Amphion Innovations, PLC. The monetary terms of the settlement were not disclosed. Amphion owns DataTern, Inc. A second related suit brought by DataTern was also dismissed in the settlement.

The open-source community is no stranger to such lawsuits since the big SCO v. IBM suit filed in 2003. The case was eventually dismissed, and IBM dropped its counterclaims against SCO as well. It seems that patent holders, or in some cases, alleged patent holders, seek out high-profile and deep-pocketed offenders upon which to prey. Are they seeking justice or an easy buck?

I’m not saying that all patent holders are gold diggers—in fact, most of them are not. Many companies patent a gadget, invention, process or some other innovation to protect themselves from such lawsuits, not to instigate them. IBM, for example, holds more than 40,000 patents worldwide and has released many to the public domain.

However, IBM surprised everyone when it launched two lawsuits against Amazon.com in October 2006. The suits stated that Amazon violated patents relating to the use of electronic catalogs, online advertising and three other technologies. In IBM’s defense, they sent several letters, over a span of about four years, stating the issues and violations, and offered licensing options before suing the online retailer. Amazon responded by ignoring them all.

How many startup companies have the resources to do patent searches to make sure their code, service or process doesn’t violate someone’s patent? Broad software or technology patents like those for electronic catalogs or interactive widgets make it difficult and oppressively expensive for anyone but patent holders to create and run a viable business. It would seem to be a very complex, if not impossible, task to claim patent infringement for a process that is mostly hidden from view. It’s also very difficult to look at two pieces of code and make a judgment as to whether or not one is an egregious copy of the other since there are naming conventions and best practices for creating code. To clarify these points, allow me to illustrate:

Let’s say that I create a program that connects to a database, selects a set of records, iterates (loops) through those records and displays them sorted by date. My code and processes to perform these functions are proprietary, not open source, and compiled so that the underlying code is hidden to licensees. I then pay for a patent search, registration, filing, etc., and eventually patent this procedure. Two years later, I check out a little open-source project owned by a large multinational company and discover that inside one of the programs is code that closely resembles my patented code. I soon make my attorney’s day with a phone call.

The lure of easy money is seductive indeed. You can almost hear the chorus of some small company’s owners ringing in with an off-key rendition of “The Gold Digger’s Song* (We’re In The Money)” while dancing around with a copy of their patent in hand.

Two to five years later, the suit is settled. All parties are exhausted. The winning and losing attorneys are all smiling—there are no real losers when you make a lot of money whether you win, lose or draw. The open-source project’s development halted back when the lawsuit was filed, stifling any innovation and advances that would have been made and shared with the world at large, including with me. I should be smiling, but I’m not. The Internet community roasts me for my litigious actions and my company and reputation are the targets of massive ridicule.

Not every patent infringement scenario plays out this way though. Some patent holders have legitimate claims, are legitimately damaged by code lifting and are therefore due a tidy sum to compensate for those damages and lost licensing fees. To them I say, “Bravo!” Your ka-ching moment is well deserved.

If a patent holder seeks true justice against the scoundrels who violate their patents, should it matter who violates those patents or how deep their pockets are? All violators should be held in equal regard, or disregard, and justice should be served to them regardless of how full their coffers may be. It’s patently obvious to me that, in many cases, justice isn’t that which is being sought.

* Music and Lyrics by Harry Warren and Al Dubin (Not Kanye West’s version)

Kenneth Hess is a freelance technical writer who writes on a variety of subjects including Linux, MySQL, SQLite, PHP, and Apache. Reach him at kenhess.com.

Related Search Term(s): Open source, Amazon, IBM, Red Hat

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