Red Hat clarifies that its Patent Promise extends only to suppliers.

Last week, I posted that it was unfair for Red Hat to complain that Microsoft does not give free patent licenses to competitors, when it doesn't either.   I explained that Red Hat's Patent Promise extends a promise not to assert Red Hat patents only to its suppliers or potential suppliers.  This is by design - with the Patent Promise, "Red Hat makes a very specific promise, to a specific set of parties, in writing."    T. Colin Dodd from the "Truth Happens" Red Hat site took exception and promised that Mark Webbink, former general counsel of Red Hat, would explain the Patent Promise in a forthcoming interview on "Truth Happens."   The implication was that I had somehow misread the Patent Promise - that Red Hat does freely license its patents to competitors. 

The interview is up.   It turns out that I read the Patent Promise exactly right.  At no point did Mark Webbink say that the Patent Promise extended to Microsoft or any other competitor.  Webbink did explain that the Patent Promise was the first step toward creation of the Open Invention Network (SM), which "is an intellectual property company that was formed to promote Linux by using patents."

In this interview, Webbink explains how Red Hat first came to own patents, and that he designed the Patent Promise with Alan Cox, a leading linux kernel developer and Red Hat employee.  Webbink explained that the Patent Promise does not extend to projects using all open source licenses, such as Apache or Mozilla, because these licenses do not "ensure that the code stays open" (i.e., they are not copyleft).  This effort to assure Red Hat suppliers - developers of the code Red Hat distributes - led to the creation of the Open Invention Network.  Webbink also explained that Red Hat’s patents put Red Hat in a strong position to rebuff Microsoft’s  efforts to negotiate a licensing agreement.  Specifically, Webbink stated that Red Hat alleged, during talks with Microsoft, that Red Hat patents read on dot Net, a series of development protocols that is very important to Microsoft. 

Red Hat says that it keeps its patents only for defensive purposes - patent licensing by detente or mutually assured destruction.  Why, then, has Red Hat refrained from explicitly making a promise not to assert any patents against anyone who does not first assert patents against Red Hat?   Red Hat could even guard against a company selling its patent rights to a troll, by reserving patent rights against parties who do so.

By withholding the Patent Promise from projects not using copyleft licenses, Red Hat has left open the prospect that it could assert its patents against companies and individuals even in non-defensive situations.  Yet, Red Hat bemoans the fact that Microsoft was not forced to give all competitors a free patent license, when it has not done so itself.  Given that Red Hat refuses to enter into a patent licensing agreement with Microsoft and believes that it has patents covering dot Net, there is nothing besides Microsoft's own patents to protect it from Red Hat. 

If Microsoft did give Red Hat a free license agreement, with no strings attached, what would keep Red Hat from suing Microsoft for patent infringement?  Not any promise from Red Hat.

Comments

[Gabriel]

The Open Innovation Network licences its patents (for free) to anyone who promises not to use their patents against Linux. If Microsoft promised to do that, they license all of Red Hat's patents - for free.

[Noah Clements]

That's not quite true. Under section 1.1 of the sample agreement, the license only extends to use of the patents for linux:

"with respect only to the Linux System, the license granted herein includes the right to engage in activities that in the absence of this Agreement would constitute inducement to infringe or contributory infringement"

There is no other license grant listed that might be read to include Microsoft's (or another's) use in a non-linux system. So under OIN licenses, Microsoft could only license all of Red Hat's patents for use in its own linux system. I don't think that is what they had in mind :-)

[Colin Dodd]

The only thing you got "wrong" in the first post was the notion that we wouldn't want to talk about it on Truthhappens.com.

The more software patents are discussed sensibly, the sooner they will become a thing of the past. So it's clearly in our (and anyone else who thinks patent law should not stifle innovation) interest to have that discussion.