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Report from the Trial in IP Innovation v. Red Hat & Novell - Updated
Tuesday, May 04 2010 @ 02:20 PM EDT

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.

Update: Here's a very terse press release from Acacia.

Total victory for open source software in a patent lawsuit

by Rob Tiller (Red Hat)

The jury verdict last Friday in favor of Red Hat and Novell in a case based on bad software patents owned by "non-practicing entities" is an important victory for the open source community. Those in the business of acquiring bad software patents to coerce payments or bring lawsuits should be worried. Two such businesses were plaintiffs in our case, and they did their best to confuse the jury in one of their favorite locales, eastern Texas. But it didn't work. The jury unanimously found that the patents were not infringed, and, even worse for the plaintiffs, that the patents were invalid.

The case was about allegations by IP Innovation, L.L.C. (a subsidiary of Acacia Technologies), along with Technology Licensing Corporation that Red Hat and Novell infringed four claims from U.S. Patents 5,072,412, 5,394,521, and 5,533,183. The patents share a common disclosure and are all titled titled “User interface with multiple workspaces for sharing display system objects.” The patents relate to a computer-implemented system and method for providing a graphical user interface with multiple workspaces.

Like most patent cases, this one involved technical subject matter and terminology. However, the plaintiffs came forward with minimal evidence to support their argument of infringement. They also faced abundant evidence showing that the patents were invalid based on prior art. In other words, there was nothing new in these “inventions” sufficient for a patent.

In these circumstances, you might suppose that a rational patent plaintiff would dismiss the case, perhaps in return for a token payment. Instead, the plaintiffs decided to ask the jury for millions of dollars. 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. They also suggested that Red Hat's public criticisms of the U.S. patent system as it relates to software and related calls for legal reform were un-American and indicated a secret fondness for the writings of Karl Marx. I kid you not! As absurd as this argument sounds, after many hours of sitting on a hard courtroom bench, I briefly wondered whether the jury might fall for this version of the classic FUD strategy and be so fearful and confused as to find for the plaintiffs.

It turned out that there was no cause for concern. Michael Tiemann, Red Hat's vice president of open source affairs, explained the fundamentals of open source so as to make them clear, and even inspiring. He explained that open source software is about voluntary collaboration, not involuntary expropriation. He also made plain that Red Hat's legitimate criticisms of the existing patent system in no way shows a proclivity to infringe patents or indifference to patent claims, and that Red Hat respects and abides by the law.

Our side took the opposite approach from the plaintiffs, basing our case on facts and evidence, rather than emotion and confusion. Our experts carefully showed that our products were noninfringing and demonstrated specific examples of prior art. In the end, the jury saw through and quickly rejected plaintiffs' FUD. The jurors took a bit more than two hours to find every one of 23 issues in favor of Red Hat and Novell.

We learned many things from this experience, but I'll note just three here. We now know for certain that those in the business of bringing software patent lawsuits are not invincible, even in the supposedly patent-friendly jurisdiction of the Eastern District of Texas. We know that Texas juries are willing to reject bogus infringement claims and invalidate bad software patents. And we know that attacks on open source based on FUD will not stand up when subjected to the light of truth.

  


Report from the Trial in IP Innovation v. Red Hat & Novell - Updated | 212 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Marc Mengel on Tuesday, May 04 2010 @ 02:28 PM EDT
Please put something like "speling -> spelling" in the title to
help identify the correction

[ Reply to This | # ]

Which prior art?
Authored by: Anonymous on Tuesday, May 04 2010 @ 03:06 PM EDT
Would be nice to know the examples of prior art that they used.

[ Reply to This | # ]

UnAmerican
Authored by: Anonymous on Tuesday, May 04 2010 @ 03:14 PM EDT

What I find most ironic about those who claim the FLOSS (the proper one, not the MS one) as UnAmerican is that their focus is not to halt the process but keep it going with a tax.

In short, my interpretation:

    "It's UnAmerican that we can't lay claim to other's people code and get paid for it like we can with proprietary code!"

RAS

[ Reply to This | # ]

The contagion seems to be spreading.
Authored by: Anonymous on Tuesday, May 04 2010 @ 03:26 PM EDT
Why does this not fill me with any confidence for the future....

"For example, in the United States, the U.S. Patent and Trademark Office (USPTO) invites training participants from around the world to its Global Intellectual Property Academy, which has over 75 training programs a year, focusing on a variety of topics from patent and trademark examination to IP management to technology transfer." Link

Experts are they?

[ Reply to This | # ]

Off Topic Here
Authored by: SilverWave on Tuesday, May 04 2010 @ 03:37 PM EDT
:-O

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

News Picks Here
Authored by: SilverWave on Tuesday, May 04 2010 @ 03:38 PM EDT
>:-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

When does fake patent become criminal fraud?
Authored by: Anonymous on Tuesday, May 04 2010 @ 03:55 PM EDT

I keep wondering about prior art. That was demonstrated here. This information
was as available to the plaintiffs as it was to the defense. In short,
plaintiffs knew, or should have known, about the prior art.

I guess this is too much to ask from lobbyist-bribed members of Congress (or any
other parliament or assembly in the world -- human nature is the same
everywhere), but it should be criminal and/or civil fraud to file a patent for
which there is discoverable prior art.

OK, you can stop laughing now.

[ Reply to This | # ]

Three Cheers for this Lawyer
Authored by: complex_number on Tuesday, May 04 2010 @ 04:07 PM EDT
Normally IMHO, Lawyers are in the main, beneath contempt and nothing more than
money grabbing whatdoyoumaycallits.

It is great for him to put this out and inder a CC license as well. That says to
me that he 'Groks' what we are all fighting about.

Keep up the good work RH.

Now where is the story from the Novell side?


---
Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

[ Reply to This | # ]

Don't be singing the praises of E. Dist. of Texas too soon. =/
Authored by: Anonymous on Tuesday, May 04 2010 @ 04:41 PM EDT
"... those in the business of bringing software patent lawsuits are not
invincible, even in the supposedly patent-friendly jurisdiction of the Eastern
District of Texas. We know that Texas juries are willing to reject bogus
infringement claims and invalidate bad software patents."

We had a good result. We also had a guest judge in charge of the proceedings. I
can't help wondering if the jury would have been as sensible with one of the
Eastern District of Texas regulars presiding over the case.

Sign me...
A Skeptical Texan

[ Reply to This | # ]

Lets not forget Ballmer & his 'Linux is communism'
Authored by: dmarker on Tuesday, May 04 2010 @ 07:02 PM EDT

 

Th e Register - July 2000

 

DSM

 

[ Reply to This | # ]

But it does not contain Mono?
Authored by: Anonymous on Tuesday, May 04 2010 @ 07:56 PM EDT
You had me worried for a minute, but as I read it they allow for integration if
you have Mono. However, the OO itself does not seem to contain Mono. In any
case, I just checked Synaptic and I do not have any Mono libraries installed on
my Ubuntu system. (I removed them all). And I do use the Ubuntu OO.

[ Reply to This | # ]

Is jury trial risky?
Authored by: Anonymous on Wednesday, May 05 2010 @ 03:09 AM EDT
If I were the plaintiff in a patent infringement case, I would be afraid of a
jury trial. One defense to patent infringement is that the method or device is
obvious. There are many things that are obvious once shown or demonstrated, but
were not previously obvious. An experienced patent judge will be aware of this
and regard something as obvious only if it was done before the patent filing. A
jury might get confused on this matter.
The same sort of confusion could occur with respect to novelty and prior art.
(Obviousness, novelty, and prior art blend into each other.)

[ Reply to This | # ]

Apple as open source example
Authored by: Anonymous on Wednesday, May 05 2010 @ 06:33 AM EDT
When the plaintiff claims that "open source" software is un-american, marxist or whatever other nonsense, the defendant should ask who in the audience has an iPhone. The web browser is open source. Then they should ask who in the audience has one of several other phones, which use a browser based on the same open source. Or who has a Macintosh computer. If you print on it, you use open source. And the whole operating system is compiled using an open source compiler.

I don't know too much of the embedded market, but I could imagine that even your TV set is running open source Linux inside nowadays. Are there any routers that don't have Linux inside? In that case every single juror with an internet connection should be told that no Linux = no internet.

[ Reply to This | # ]

Marxist TVs running Linux
Authored by: Anonymous on Wednesday, May 05 2010 @ 07:26 AM EDT
Since the plaintiffs established that using Linux is un-american and marxist, you should immediately throw out any

Sony Bravia
Toshiba Regza
Philips 5604
Sharp

TVs that you might own :-) I think someone should really make a list of items that an ordinary non-geek person would likely own in their home. Is there any GPS that doesn't use Linux?

[ Reply to This | # ]
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