On 9 October a company called IP Innovations LLC filed suit against two major GNU/Linux vendors, Red Hat and Novell. The complaint (pdf courtesy of Groklaw) cites the infringement of three venerable patents now held by IP Innovations, relating to the presentation of user interface elements on a desktop. While parsing the precise extent of a patent’s claims is something that is best left to professionals, there seems to be near universal agreement that these patents cover, among other things, the use of tabs to allow a single window to display separate sets of tools or controls. IP Innovations successfully obtained a settlement from Apple back in June after filing suit for infringement of the same patent set.
IP Innovations’ complaint asks for an injunction against Red Hat and Novell, stopping them from distributing “the Red Hat Linux system; the Novell Suse Linux Enterprise Desktop; and the Novell Suse Linux Enterprise Server”. It also asks for increased damages to be awarded due to Red Hat and Novell’s “willful and deliberate” infringement. Increased damages can amount to as much as three times the royalty that IP Innovations might have expected if a proper licence had been negotiated before distribution.
Naturally the Linux community is livid. Many have jumped to the conclusion that Microsoft is somewhere behind this action, particularly in light of the fact that some ex-Microsoft staff have recently joined the senior management of IP Innovations’ parent company Acacia. Steve Ballmer, Microsoft’s feisty CEO recently predicted that Linux would soon be hit by patent claims from third parties. The filing of this suit just over a week after that speech strikes some commentators as suspicious, particularly as one might imagine that Microsoft themselves might been a more lucrative next target. After all, these patents are old and due to lapse late next year, so the window of exploitation is rapidly closing.
Despite these doubts, no firm evidence has emerged to link Microsoft to Acacia. IP Innovations responded to the blog-storm that followed the announcement of the suit, describing the arrival of the former Microsofties as “‘normal’ business behavior” (their quotes around normal, mysteriously) and stressing that their suit should not be seen as an attack on open source, perhaps fearing the fervent and bitter opposition that such an attack would inevitably unleash:
“IP Innovation is not attempting to inject itself in the ongoing philosophical debate of whether products or services which utilize open source are subject to the same intellectual property laws/behaviors as non-open source offerings… Acacia and its subsidiaries do not philosophically differentiate any company, but rather seek to consistently and fairly monetize patent rights from those companies which incorporate patented technology.”
Acacia are an example of what some critics call a ‘patent troll’; a less loaded term is ‘IP Holding Company’. The business model of such companies involves spending money acquiring patents and then making money by forcing unauthorised users of the patents to take out licences or extracting money from them via the courts. One of the reasons that this is a particularly lucrative area of business is that the holding companies are difficult to retaliate against. If a manufacturer decides to take a competitor to court for patent violation, the result is often a counter-suit from the competitor. After all, they are likely to be doing many of the same things, and to both own patents in that area. Rather than risk injunction (legally enforced withdrawal of the infringing product) the competitors will often reach an out-of-court patent cross-licensing deal that allows both to continue selling their wares. With an IP holding company, there is no competitive product and thus no vulnerability to injunction. Big IT firms like Microsoft have been complaining for many years that such companies stifle innovation and are over-protected by the legal system. Last year the US Supreme Court seemed to endorse that view, ruling in eBay vs Mercexchange that companies who are not themselves exploiting a patent might not deserve the automatic injunction against infringers that they had formerly received as a matter of course.
So IP Innovations request for an injunction against Red Hat and Novell will now have to be considered in the light of that decision. The court must balance the loss being suffered by the plaintiff against the damage done to the alleged infringer, and select a remedy that evens the score. Injunction is generally considered to be a very damaging remedy, which is partly why IP holding companies have been able to scare manufacturers senseless for so long…
Of course, in the case of distributors of GNU/Linux, any kind of outcome that involves payment of a licence fee is far more damaging than would normally be the case. The GNU General Public License under which the Linux kernel is licensed forbids a distributor from distributing if they cannot do so unencumbered. Paying a licence fee to IP Innovations would be just such an encumbrance. In the case of these particular patents, it might not be such a problem; after November next year the patent will have lapsed and the technology will be available for all to use without a licence. If the patent had longer to run, though, a finding that GNU/Linux infringed it could result in a general inability to distribute, and the effective commercial death of the OS.
“If the patent had longer to run, though, a finding that GNU/Linux infringed it could result in a general inability to distribute, and the effective death of the OS.”
I think that is somewhat of an overstatement. Firstly the kernel is unaffected by any patent in the user interface domain. Secondly, the vast majority of tools in the GNU toolset are not affected by these patents. Finally, those tools that are affected could use a different interface if necessary (this would certainly be problematic though).
However, I’ve not read the full complaint like you have. Is there more to it than the UI patents you mention?
Yes, you are right about this particular patent. Arguably it covers a great deal of what we think of as a windowing interface, but it could be avoided, I think. My point (although I agree I could have been clearer) is that with longer to run, the effort required to invent around the issues would cause a long caesura in desktop Linux releases, a market which is far from healthy in any case. Yes, a command line Linux would be unencumbered in this case, but there’s no guarantee that the next patent to come along wont target the kernel. Whereas distributors of non-GPL-licensed OS’s can bite the bullet and pay the licence fee, Linux distributors do not have that option. The hopeful mantra “we’ll code around it” ignores the business reality that six months to a year of no product shipping from any commercial Linux vendors would cripple demand.
I can agree with your restated point, I was just a little concerned about the finality and broadness of your original statement. I thought maybe I’d missed something in the patents concerned. thanks for the clarification.
I’ve amended the final sentence to moderate its breadth a little.
Interestingly, the suit is only against the commercial / supported versions of these companies products, rather than the move open Fedora and OpenSUSE.
I wonder whether this was deliberate, or whether a suit against a small contained group of companies is just easier / cheaper.
I think the key to that is money. IP Innovations want, in their own words, to “monetize patent rights”. Novell and Red Hat have some of the deepest pockets in the Linux distro business.