Red Hat's Patent Promise
September 21, 2017
Red Hat issued its first patent promise in 2002. As we explained at that time, our patent portfolio is intended to discourage patent aggression in free and open source software (FOSS). Since then, we have worked hard to discourage patent attacks through a range of initiatives, and have never used our patents offensively. We believe our defensive approach to patents has been beneficial to the open source community as well as Red Hat.
Over the years, we have received some questions about our patent promise and its coverage. With those in mind, we have clarified the terms of our patent promise, extended its coverage, and strengthened our commitment.
Our Patent Promise:
To the extent a party makes, uses, sells, offers to sell, imports, or otherwise transfers Covered FOSS, Red Hat agrees not to use such actions as a basis for enforcing its patents against the party ("Our Promise"), subject to the limitations herein. Our Promise extends to combinations with such Covered FOSS if the claimed invention is substantially embodied in the Covered FOSS portion of a combination and if all other portions of the combination are merely enabling or general-purpose technologies or practices. For clarity, Our Promise does not extend to hardware by itself or other non-Covered FOSS by itself. Our Promise also does not extend to the actions of a party (including past actions) if at any time the party or its affiliate asserts a patent in proceedings against Red Hat (or its affiliate) or any offering of Red Hat (or its affiliate) (including a cross-claim or counterclaim).
A party relying on Our Promise acknowledges that Our Promise is not an assurance that Red Hat's patents are enforceable or that practicing Red Hat's patented inventions does not infringe others’ patents or other intellectual property. Red Hat is not liable to a party relying on Our Promise for related claims brought by another based on infringement of intellectual property rights or otherwise. Red Hat intends Our Promise to be irrevocable (except as stated herein), and binding and enforceable against Red Hat and assignees of, or successors to, Red Hat’s patents (and any patents directly or indirectly issuing from Red Hat’s patent applications). As part of Our Promise, if Red Hat sells, exclusively licenses, or otherwise assigns or transfers patents or patent applications to a party, we will require the party to agree in writing to be bound to Our Promise for those patents and for patents directly or indirectly issuing on those patent applications. We will also require the party to agree in writing to so bind its own assignees, transferees, and exclusive licensees.
Red Hat may modify Our Promise by publishing a new edition on this page or a successor location. The prior edition (including its treatment of previously distributed Covered FOSS) will continue to apply to versions of software distributed as Covered FOSS before the new edition is so published, while the new edition will apply to all other Covered FOSS. Also, the prior edition (including its treatment of previously held patents and patent applications) will continue to apply to patents and patent applications that Red Hat holds before the new edition is so published, and to patents and patent applications that directly or indirectly issue from such Red Hat patents and patent applications, while the new edition will apply to all other patents and patent applications. Nonetheless, this edition of Our Promise supersedes retroactively and prospectively any prior Promise on Software Patents.
Approved License means a license listed by the Open Source Initiative as an approved license at https://opensource.org/licenses/alphabetical and that satisfies the “Open Source Definition” provided by the Initiative at https://opensource.org/osd as of the date this edition of Our Promise is published, or a license listed by the Free Software Foundation as a free software license at https://www.gnu.org/licenses/license-list.html#SoftwareLicenses and that satisfies the “Free Software Definition” provided by the Foundation at https://www.gnu.org/philosophy/free-sw.en.html as of the date this edition of Our Promise is published.
Covered FOSS means software licensed and distributed under an Approved License if matching source code for the software is available for distribution to the general public free of charge under an Approved License.
Red Hat means Red Hat, Inc. and its subsidiaries.
Frequently Asked Questions:
Why is Red Hat committing to a new version of the Patent Promise?
We issued the first Patent Promise 15 years ago. Since then, both Red Hat and open source have changed considerably, and some aspects of the Promise became outdated. Open source is what Red Hat does, and open innovation plays an increasingly important role in technology and beyond. Our expanded Patent Promise recognizes and is designed to protect open innovation.
How does the new Patent Promise improve upon its predecessor?
The new Promise is substantially clearer and broader than its predecessor. While the old Promise covered approximately 35 percent of open source software, the new version will cover more than 99 percent. It applies to all software meeting the free software or open source definitions of the Free Software Foundation or the Open Source Initiative and listed by the FSF or OSI. Also, the Promise promotes growth of the open source commons by encouraging release of matching source code. This means that all commonly used open source licenses are included, and many less commonly used ones.
Does the new Promise cover more patents?
Both the new Promise and the original Promise covered all Red Hat’s patents. It’s worth noting that at the time of the original Promise, Red Hat had only a few patents, while now it has more than 2000.
Does the new Promise apply to Red Hat’s subsidiaries?
Yes, the new Promise applies to Red Hat’s subsidiaries, as well as to its successors and assignees.
Is the new Patent Promise a firm commitment by Red Hat?
Yes, the new Promise expressly states that Red Hat intends the Promise to be binding and enforceable. It is intended to make clear Red Hat’s continuing commitment to support the open source community and not to assert patent claims regarding open source.
How does the new Patent Promise relate to similar commitments by other companies?
While some companies in recent years have sought to allay concerns about the possible use of their patents through commitments similar to Red Hat’s original Patent Promise, to our knowledge, no company has gone as far as Red Hat in making such a wide-ranging commitment as our new Promise, including coverage of our entire patent portfolio. We encourage other companies to make commitments similar to this one.
What will happen to the original Patent Promise?
The new Promise supersedes the original Promise and applies retroactively. This makes clear that the broader coverage and other improvements of the new Promise replace the more limited scope of the original.
What are the requirements for benefiting from the new version?
There are no special acts required to receive the benefits of the new Promise. It generally applies to any software that would otherwise infringe one of Red Hat’s patents as long as that software is covered by one of the specified open source licenses.
Do you foresee future changes to the Patent Promise?
There are no plans for additional revisions to the Promise. We recognize that there could be future developments that merit further modifications and will consider the best course in those circumstances. The new Promise makes clear that, if there should be future revisions, they will not undo the protections and coverage now being put in place.