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LinuxWorld opines on Red Hat settlement

By Lawrence B. Ebert, Esq.

A post at LinuxWorld on the Red Hat settlement begins:

When you're driving down the highway and you see a spotless white tanker truck with a big green tree painted on the side, you can be pretty sure that it's full of hazardous waste.

Likewise, companies with "innovation" in their names are generally innovation-hostile patent trolls. The problem isn't just that they file for obvious patents, or patents on things that someone else already invented, but that they drag the enormous transaction costs of the patent system into the flexible world of software, where transaction costs are low.

IPBiz wonders if LinuxWorld might also be talking about IBM's toilet-queue patent or Microsoft's "employee monitoring" application?

The "spin" on Red Hat can be seen in the following:

Richard Fontana, Open Source Licensing and Patent Counsel for Red Hat, told me, "The real takeaway is that this agreement is really historically unprecendented in the extent to which it covers not just us, the company that was sued, but also an entire ecosystem."

There was an oblique reference to the Eolas patent:

No matter whose software you use, some of your suppliers are going to get hit with patent lawsuits. Most software patents don't hold up in court against a determined defense, but one does occasionally get through, as web developers found when Microsoft had to change its Internet Explorer browser to get around a troll patent. Patents are going to cost you no matter whose software you use.

LinuxWorld neglected to mention that the Eolas patent went through a re-examination WITHOUT an amendment AND survived litigation.

The post mentioned KSR:

Last year, the US Supreme Court unanimously ruled in favor of a patent infringement defendant in KSR v. Teleflex, helping to bring the legal definition of an "obvious" invention much closer to the obvious definition of "obvious." With one ruling, the Court likely brought the value of many software patent portfolios down to whatever the holders can get at the paper recycling center.

Did the KSR v. Teleflex case motivate the troll to settle? Possibly, Fontana says. Red Hat's defense in the original case was based on "anticipation and obviousness based on the existence of prior art," he adds.

KSR "has changed the climate surrounding patent litigation in a way that is beneficial to Red Hat and other defendants," he says. "So many software patents are, I believe, vunerable on obviousness grounds."

The post didn't mention the confusion now present in the biotech/pharma area because of the Supreme Court's gratuitous allusion in KSR to In re Deuel, which had ZERO to do with the KSR case.

***See also previous IPBiz post on Red Hat settlement.

Full post as published by IPBiz on June 13, 2008 (boomark / email).