Red Hat defends controversial patent applications

The Linux distributor, known for its opposition to software patents, condemns patents in general, but still argues that it must build up its own defensive arsenal

Linux distributor Red Hat has published a clarification of its policy on software patents, defending itself against criticism of the company's patents policy.

Red Hat, which has the biggest market share of any Linux distributor, came under fire last week when it emerged that the software company had applied for two software patents. In its policy, Red Hat condemns software patents but argues that it must build up a patent portfolio of its own as a defensive measure.

Open-source developers and companies such as Red Hat generally argue that software patents hinder innovation, since it is next to impossible to create software that does not use patented ideas. Large companies with an arsenal of patents, the argument goes, can put rivals out of business by suing them, since even a poor case would be too expensive for many companies to defend themselves against.

The tactic adopted by Red Hat and other companies is to maintain a defensive patent arsenal, in case they need to launch a counter-suit. In such a case the two companies can resolve the dispute by cross-licensing the patents to one another, avoiding protracted legal battles on both sides.

"In the interests of our company and in an attempt to protect and promote the open-source community, Red Hat has elected to adopt this same stance," the company's policy states. "We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position."

The company said it saw no reason why its stance should affect its position as an advocate of open source. "We believe the position we are taking is consistent with both the interests of the open-source/free software community and our company," said Mark Webbink, senior vice president and general counsel, in a statement.

As part of the policy, Red Hat said it will not attempt to enforce its patents when they are used in open-source software. Open-source software is distributed under a licence that allows users to modify and redistribute it, as long as the modified versions are themselves open source.

However, Red Hat omitted software covered by the BSD licence from its agreement, since software covered by a BSD licence can be integrated into proprietary software.

The two patent applications in question were filed last August, listing Ingo Molnar as the inventor. One is for a Embedded Protocol Objects and the other is method and apparatus for atomic file lookup. The patent filings were originally reported on an Italian site called FreeGo.

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