Red Hat Takes Anti-Patent Stance

Red Hat, a leader in the open source software market is taking a major stance against the current patent system. An important case referred to as the Biliski Case is now being decided by the Federal Circuit Court of Appeals and it has to do with patenting business processes.

Red Hat has taken the stance that virtually all open source software must in some way infringe on software patents as these patents are virtually impossible to interpret objectively.

In a public statement on its site the company had this to say:

Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.

Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. It’s impossible to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot be efficiently searched. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus , a risk of litigation exist for every open source project, and the potential cost of patent litigation runs into millions of dollars for a single case.

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.

Red Hat further argues the open source software market would grow at a much faster rate if the threat of patent lawsuits for software/business processes were to be eliminated.

While many think this case is a major one which could reshape patent law, at least one site doesn’t think so. It will be worth watching this case carefully as it could have myriad ramifications for the communications and technology markets.