Red Hat and Novell win patent fight

Red Hat and Novell win patent fight

Summary: Software patents are increasingly a challenging subject. Red Hat and Novell recently won a court battle over alleged patent infringement over user interface patents.


Software patents are increasingly a challenging subject. Red Hat and Novell recently won a court battle over alleged patent infringement over user interface patents. This served to invalidate three patents. The key question is whether software patents help or hurt the IT industry.

Here's how Red Hat's describes this win

Red Hat, Inc. (NYSE: RHT), the world's leading provider of open source solutions, announced that today a jury in federal court in Marshall, Texas, returned a verdict in favor of Red Hat, Inc. and Novell, Inc. in a case alleging patent infringement brought by IP Innovation LLC, a subsidiary of Acacia Research Corporation and Technology Licensing Corporation.

The patents at issue were found to be invalid and worthless.

Novell, by the way, appears not to have commented on this win in a press release. Update: One of Novell's PR representatives contacted me.  He agreed that Novell hadn't sent out a release on this topic.  They did, on the other hand, publish something on their PR blog about this (see for more information.) As an aside, this approach to releasing information doesn't work very well unless all of the intended recipients come around and visit the blog from time to time.  Since we're tracking well over 100 virtualization suppliers and well over 200 cloud computing suppliers, visiting all of their blogs would be a huge investment in time and effort

Snapshot Analysis

While protecting intellectual property is important and I'm not at all opposed to individuals or companies earning money through their innovation and hard work, I'm not at all sure applying the concept of patents, a concept originally meant to protect mechanical processes, to software is a good thing. Software is inherently different than a mechanical process.

Having been a software engineer, I know that often there are many different ways to implement the same concept. I've implemented similar functions in APL, COBOL, Datatrieve, Dibol, LISP, FORTRAN, MUMPS, PL/I and quite a few other languages which could be described as merely footnotes in the history of IT. The only thing shared by these different pieces of code was a common need. This is quite a bit different from building a set of cogs, levers and the like to implement something.

The problem faced by developers today is that if a company or an individual wins a patent for one approach, that patent can be used as a basis for a legal attack on anyone else attempting to implement a similar function even if no code was shared between the solutions.

Since I'm no attorney, I won't attempt to discuss legal theories about why patenting software is either good or bad. I can comment that they appear to be used by some companies in an attempt to grab a slice of another company or individual's "financial pie" even though it was prepared using different ingredients, baked in a different kitchen and served using totally different dishes.

I'm happy to see it when one of those other chefs is vindicated in court.  I have to wonder, however, if the industry is being served well when those chefs have to take time out of their busy schedule and invest their funds in protecting their own recipes from those who have decided that "all your recipes are belong to us."

Topics: Legal, Linux, Open Source, Software


Daniel Kusnetzky, a reformed software engineer and product manager, founded Kusnetzky Group LLC in 2006. He's literally written the book on virtualization and often comments on cloud computing, mobility and systems software. In his spare time, he's also the managing partner of Lux Sonus LLC, an investment firm.

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  • RE: Red Hat and Novell win patent fight

    :"Software is inherently different than a mechanical process." no, it isn't.
    :"This is quite a bit different from building a set of cogs, levers and the like to implement something." no, it isn't.
    if it were, then eli whitney's cotton gin would be merely another approach to clawing cotton seeds out of a boll.
    • RE: Cotton Gin analogy misses the point...

      If one were to invent a different method to remove cotton seed from the boll using, perhaps, compressed air then that new invention would not infringe upon Whitney's patent because is uses a different process to achieve the same end result.<br><br>In contrast, if a programmer were to use different techniques and programming languages to create a software feature (such as presenting multiple desktops) in a new, more efficient manner that programmer would not necessarily be protected from software patent infringement.<br><br>In relation to physical objects the patent protects the process or method. Unfortunately, all too often, software patents ignore process and method and focus entirely on the feature patented.<br><br>There's no way to build a better cotton gin if the mere concept of removing seeds from cotton is the focus of the patent's protection.
  • RE: Red Hat and Novell win patent fight

    Knuth was right. He too came out against software patents in his classic "The Art of Computer Programming" -- and for much the same reason as Kusnetzky.

    In fact, I am surprised how few people reference Knuth on this subject. Knuth's work really was a classic, and should still be read by any aspiring software developer.

    Perhaps this is what is wrong with our industry today: not only are IT graduates entering the market clueless about their own chosen field because of this neglect, but they are also failing to see why software patents are strangling the industry instead of helping it.
  • RE: Red Hat and Novell win patent fight

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