Issue #1 November 2004

The Red Hat Patent Promise: Encouraging Innovation

Promises, Promises

Back in the day, when Red Hat originally set the standard for Linux patent policy with the groundbreaking Red Hat Patent Promise, most people didn't take much notice. That's probably because in 2001, when we first made this promise to keep our patents available to the open source community, people were still waiting to see if a company could make money from open source software in the first place.

What a difference three years makes. Now Linux has become the world's dominant growth operating system. There are some Really Big Companies rebuilding their business models around Linux to remain competitive. There are also some other Really Big Companies that are very nervous about the Linux one-two punch of openness and value, and these companies are looking desperately for ways to slow the march of Linux any way they can. What do these Really Big Companies have in common? Really Big Patent Portfolios, that's what, assembled over many years to build and sustain competitive advantage in the marketplace.

It has been asserted that Linux may infringe on the patents of some of these companies. This possibility gives the Really Big Companies a potentially useful tool: the threat of litigation. Ultimately, litigation does not seem likely; no one really wants to start the mother of all patent wars. Still, given the aggressive ways that software patents are being used today, the threat itself is potent. Really Big Companies will certainly use this threat if it provides them with any competitive advantage. Will they really litigate? Does Linux actually infringe? Practically speaking, these questions are irrelevant; like Shakespeare said, "the play's the thing."

Fortunately for the Linux faithful, some of the companies with the largest patent portfolios are heavily invested in the success of Linux. Not surprisingly, these companies are now making promises to use their patent portfolios to benefit Linux and open source.

But there are promises, and there are promises. In the eyes of the law, not all promises are created equal. It's important to understand the distinction between a promise that relies upon the goodwill of the company making the promise, and a promise that carries the weight of law behind it.

IBM: The Promise Not to Attack

At the most recent Linux World, IBM senior vice president Nick Donofrio announced that IBM would not use its patents against Linux and urged other companies to make the same promise.

Insofar as this promise is kept — and no one expects it won't be; launching a patent assault against the little blond kid in their ads would be a profoundly weird move by IBM — it's a great promise for Linux. Of the 283 patents that OSRM judges the Linux kernel could potentially infringe, IBM holds 60 of them, the most held by any one company. Well-intentioned as it seems to be, though, the IBM promise leaves some pretty big holes.

For one thing, the promise is vague. It doesn't necessarily apply to patents that IBM holds on business processes, for example, that may be prosecuted to impede Linux competitors. Take for example the patent granted to IBM in December of 2003 that specifies methods for paying volunteers who contribute to open source projects. This patent is likely defensive in nature, but how can anyone be certain of that? And if it's not, then how would it affect open source innovation if IBM gained the exclusive right to decide how contributors get paid for their patches?

Another problem: IBM's promise — in fact Donofrio's promise, since he appears to be the only one to have made it in public — is not backed up in print anywhere. This fact has not escaped the notice of Bruce Perens. "I want to know Linux and open source developers are safe from IBM's patents," Perens says. "I would like a signed document to that effect, because managements change and the goals of corporations change."

Novell: The Promise to Counter-Attack

Since entering the ranks of Linux distribution vendors with their purchases of SuSE and Ximian, Novell has become even more heavily invested in the success of Linux than IBM has. Accordingly, they've made their promise in writing with their Statement on Patents and Open Source Software, in which they promise not just to refrain from attacking Linux, but to use all of the means at their disposal to protect it.

Actually, that's not entirely accurate. To be specific, and lawyers are nothing if not specific, the promise that Novell has made is to defend itself. The statement is very particular in this regard: "Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings."

So how, exactly, would Novell "use its patent portfolio to protect itself against claims made on the Linux kernel"? Novell isn't likely to have patents on new features introduced to the kernel by the community. Let's say that the 2.8 kernel introduces a new feature: toast buttering. If Megalithic Corporation dusts off a patent for "methods of applying a butter coating to various edible substrates" and brings it to court, and if Novell doesn't mention butter even once in their entire patent portfolio, then how can Novell possibly mount an effective defense?

The best defense is a good offense, as the old saying goes, and it's as true in patent law as it is in any other sport. Big software companies build big patent portfolios over time. Any two software companies of sufficient size are likely to be stepping on one another's patents somewhere. Therefore, if Megalithic Corporation should decide to bring their bigger, better butter patent to court one day, Novell's lawyers would likely bring briefcases full of potential Megalithic infringements to court the next day.

The nice folks at Novell don't mince words, either. Their statement makes it clear that they won't shy away from a fight: "vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response." This is pretty good deal for Linux. If any company asserts a patent against any part of the Linux kernel, Novell is likely to come out swinging.

It bears repeating, though, that the only promise Novell is really making is a promise to defend itself. Its defense of Linux is ultimately indirect and incidental. If "the best defense for Linux" and "the best defense for Novell" should turn out to be different, their statement makes it very clear which path they'll take.

The Novell statement also says nothing about the possibility that open source software may ultimately infringe upon patents that Novell itself holds. Novell makes a lot of money by selling proprietary products on top of Linux, and patents on these products probably represent a significant chunk of their patent portfolio. What happens when the open source community creates software that threatens the revenue created for Novell by these products? Novell doesn't say, and their silence on this point is telling.

Red Hat: The Promise to Protect Open Source Innovation

Software companies feel the need to build patent portfolios to protect their own interests. For a company like Red Hat, built upon the principles of open source, this is a particularly disagreeable fact, but it's a fact nonetheless.

When Red Hat first began to acquire patents, there was a fair amount of alarm in the community, and even among Red Hat's own developers, that Red Hat intended to build proprietary products based upon these patents. It became immediately clear that Red Hat needed a patent policy that struck the appropriate balance between openness and self-defense.

The Red Hat Patent Promise was the result of collaboration between developer Alan Cox and chief counsel Mark Webbink, with the specific aim of creating that necessary balance. In (over-)simplified terms, the promise opens Red Hat's patent portfolio, in its entirety, for use by the open source community, in accordance with a set of approved open source licenses.

What makes the Red Hat promise so different is the very particular nature of the promise. Whereas IBM makes a vague promise not to assert patents against Linux, and Novell makes a promise to protect its own interests in Linux against attacks, Red Hat makes a very specific promise, to a specific set of parties, in writing. The meat of that promise: "To the extent any party exercises a Patent Right with respect to Open Source/Free Software which reads on any claim of any patent held by Red Hat, Red Hat agrees to refrain from enforcing the infringed patent against such party for such exercise ('Our Promise')."

So why is this promise important, and what prevents Red Hat from breaking this promise? It's all about specificity; as we've mentioned before, lawyers are nothing if not specific. At the end of the day, Red Hat still holds patents, and legally speaking, if the open source community develops technologies that read on those patents, then the patents are technically being infringed. But so long as the infringing technology is open sourced, Red Hat explicitly promises not to enforce the infringement.

The beauty of this promise is that potential "infringers" can count on protection from the courts by a legal principle known as estoppel. Here's how estoppel works, and bear in mind that we're talking about law here, so it's time to get nitpicky: if the first party (let's say "Red Hat") makes a very specific promise (let's say "not to sue someone who builds our patented technology into an open source application") to a second party (let's say "a trusting developer"), then the first party (that would be "Red Hat") is prevented from breaking that promise at law if the second party (that would be the "trusting developer") relied on that promise, and would be harmed by the breaking of that promise.

Note that this promise still allows Red Hat full latitude to pursue any infringers who try to roll our patents into a proprietary application, thus providing Red Hat necessary protection against unscrupulous types who might try to close technologies that were designed to be open.

Red Hat still doesn't care much for software patents, and continues to make its opposition to software patents clear. In a world that allows software patents, though, Red Hat will continue its efforts to make patents into what they're supposed to be: a spur to innovation, rather than what they've become: an impediment to innovation.

About the Author

Greg DeKoenigsberg is the Community Relations Manager for Red Hat. He holds a number of lawyers in very high regard and is well acquainted with many more.