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Discouraging Software Patent Lawsuits
March 17, 2009
by Rob Tiller, Vice President and Assistant General Counsel, IP
Recently we’ve seen some surprising comments about Red Hat’s stand on software patents and, in particular, about one of its patent applications related to the AMQP specification. It looks like clarification is called for. Our views and our position, as expressed in our work for patent reform, our Patent Promise, and our work with the AMQP project, have not changed.
Red Hat has worked hard to address the problems of our patent system. We believe there are serious problems with the existing system, particularly as it affects free and open source software. In just the last few months, we have supported new patent reform legislation, submitted a brief in the Bilski case arguing against patenting of software, and created an innovative patent settlement in the FireStar case that gave broad protection to the open source community. We are also proud of our work in helping establish the Open Invention Network, supporting the Peer-to-Patent program, and developing our Patent Promise.
We have also worked to build a patent portfolio. As we have explained many times, the purpose of this portfolio is defensive. This means that it is designed to discourage patent lawsuits by giving us the ability to retaliate against potential patent aggressors by asserting counterclaims as a defense. We believe it is important to have such a portfolio, because of the threats of companies that are hostile to FOSS and that have amassed large stockpiles of overbroad patents.
We have made a public commitment to this purely defensive approach with our Patent Promise, which is at /footer/patent-promise. This promise is binding. It demonstrates our determination to use our patent portfolio only in the defense of free software.
Although there have been some recent questions about one of our patent applications relating to the AMQP specification, they appear to originate in an attempt to spread FUD. There’s no reasonable, objective basis for controversy. In fact, the AMQP Agreement, which we helped to draft, expressly requires that members of the working group, including Red Hat, provide an irrevocable patent license to those that use or implement AMQP. In other words, even if we were to abandon our deeply held principles (which we will not), the AMQP Agreement prevents us from suing anyone for infringing a patent based on an implementation of AMQP specification. Moreover, our Patent Promise applies to every patent we obtain. Red Hat’s patent portfolio will never be used against AMQP, and Red Hat will support any modifications to the specification needed in future to verify that fact.
Red Hat has a a long track record of supporting FOSS generally, and it has worked hard to address the shortcomings of the patent system. We intend to continue that support and those efforts.