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Report from the Trial in IP Innovation v. Red Hat and Novell

By Pamela Jones et al.

Rob Tiller, vice president and assistant general counsel for Red Hat, attended the trial in IP Innovation v. Red Hat/Novell, and he lived to tell the tale. What is interesting from his account on OpenSource.com is that the plaintiffs tried to portray the FOSS development model as somehow criminal, un-American:

Their theory appeared to be that the jury might be confused by the technical terms and unsympathetic to out-of-state businesses with creative business models.

With that end apparently in view, the plaintiffs' counsel launched an attack on the theory and practice of open source software. It was clear during jury selection that our jurors had no prior knowledge of, or experience with, open source. Plaintiffs attempted to exploit this inexperience by arguing that open source software involved behavior that was, if not downright illegal, at least ethically dubious. They promoted the fallacy that open source distributors unfairly take the property of others and thereby unfairly profit.

Say, that's exactly what SCO tried to claim, is it not? And Microsoft too, now that I think of it.

However, the jury didn't buy it, and in the end the three asserted patents were declared invalid. It was a tremendous victory for Open Source, not just for Red Hat and Novell, and don't let anyone tell you any different. Here's why. Patents that are victorious against one victim are generally then used against further victims, an entire market if possible, so in my view all Linux vendors and projects were potentially at risk from these bogus patents. I believe this was likely intended as just the opening salvo.

Dear US Supreme Court,

Please do something about the damage some are trying to inflict on Open Source and Linux with software patents. They will not stop on their own. How many such trials can any Linux company (or project) afford? Did you know that Mike Anderer, who was a close friend of SCO Group's former CEO Darl McBride, infamous for attacking Linux, said that is the Microsoft plan, to see that Linux is sued over and over until it dies off from the expense? I don't know if the IP Innovation attack is connected or not, but In Re Bilski gives you the opportunity to alter the landscape before such an evil plan can succeed. Millions of us would like very much to continue to use what we view as better software, not only better in that it is more fun and effective to use, but better because it is more secure. A UN study confirmed that [PDF], by the way, so it's not just my opinion. In that sense, I believe America needs Open Source, and no one should be allowed to destroy it using bogus software patents, but the system now is set up to enable exactly such conduct.

Thank you.

Because Tiller placed his article under a Creative Commons license, I would like to share it with you here as well.

Full post as published by Groklaw on May 04, 2010 (boomark / email).