Red Hat, ACLU are no friends of software patents

Red Hat (NYSE: RHAT) has joined the American Civil Liberties Union [ACLU] and others in filing friend of the court briefs in U.S. Federal Court. They both oppose the fairly new (a little more than a decade old) idea in the U.S. of granting patents on concepts instantiated in software. The case the two are getting friendly about is called In Re Bilski and is probably wending its way to the U.S. Supreme Court because the Federal Appeals Court involved has broadened the case's scope to include revisiting the late 1990s rulings considered to have enabled "software patents" in the U.S.

Interestingly (based on reading third-party information because Red Hat had not actually released its brief as of this writing, only a press release about the brief), the case in question does not appear to involve software. It appears Red Hat, like the Appeals Court, was simply looking for a place to take a stand. According to its press release (and many of its past SEC filings), Red Hat says patents stifle innovation. Red Hat applies for some patents itself but only in self-defense.

Red Hat's press release says patents stifle open source software (OSS) innovation but my research says there is nothing unique in the "open source developement process" that would make it any more (or less) likely to be stifled. The press release appears to be a cry to help the "poor software artists" working somewhere in a garrett but a recent Linux Foundation study showed that most open source development, at least on the Linux kernel, is done by the same large corporations where all other software development takes place. Developers of code that will eventually be licensed under an Open Source Initiative or similar license (there really is no such thing as an open source developer) appear to have the same access to intellectual property (IP) legal advice as any other software developers. And, I believe, all developers will need to do the same due diligence relative to respecting others' IP if the industry reverts to using copyright law (which is the way it used to be in the U.S and still is in most places outside the U.S., I think).

Investors want to begin to reconsider (or begin to consider) how to value software companies' patent portfolios. Any change in legalites would not affect the millions of dollars many of the largest IT providers make on patents related to more substantive things like hardware. And also consider that the major innovation that a change in software patent rights might kick off is burying software down in a "hardware device" often called an appliance (and then patenting the combo). The industry is beginning to go that route anyways.

As usual, the U.S. Congress is abdicating its responsbility on this issue by doing nothing and leaving the issue to the courts.

The ACLU is coming at it from an entirely different angle, a free-speech connection. I shamelessly shoehorned the reference to the ACLU into this blog post simply to get your attention and make a comment about Red Hat CEO Whitehurst's recent statement that "George Bush is good for open source" (based on Infoworld article; Red Hat will not provide a copy of his remarks). But I can't think of a comment to make other than that I am appalled by it if the Infoworld article is accurate.

-- Dennis Byron