What is the best way for technology companies to protect themselves from patent aggression without discouraging open source innovation? Red Hat has worked on various approaches to this problem, including a substantial new revision of its Patent Promise.
Red Hat is the world’s leading provider of open source-based information technology (IT) solutions, and has built a substantial patent portfolio of more than three-thousand assets to discourage patent aggression. Since 2002, the company has had a Patent Promise that underscored its allegiance to the open source community and commitment not to enforce its defensive patent portfolio against open source software. A few weeks ago, Red Hat revised its Patent Promise to refresh its defensive commitment and expand and extend the Promise’s reach.
Discouraging Patent Aggression
The need for Red Hat’s defensive patents arises from the millions of in-force patents in the world today, many of which come from the IT industry. Control of most of these IT patents is concentrated among a few hundred medium and large-sized operating companies, some of which are potential aggressors. With its transformative, open source-based development model and robust growth, Red Hat faces antagonists that might wish to use patents to tax its business, feature-hobble its products, or deter users from adopting its offerings.
Like many companies, Red Hat mitigates this risk to its business by accumulating defensive patents. This effort discourages patent aggression against the company’s offerings, including popular open source software such as the Linux operating system.
A Promise Made and Commitments Kept
In the presence of these patents, Red Hat’s Patent Promise works to assure employees and external innovators working on important new technologies. This assurance builds trust among a vast community of open source developers, allowing development to flourish on the company’s platforms.
Trust also comes from Red Hat keeping its defensive commitments. The company has worked hard for decades to discourage patent attacks through a range of initiatives, and has never been the plaintiff in a patent lawsuit or otherwise offensively asserted its patents. Red Hat’s defensive approach to patents has benefited itself and the open source community.
Among its defensive patent initiatives, Red Hat helped create – and plays a significant role with others in directing the activities of – the License-on-Transfer (LOT) Network. Red Hat is excited to participate in and endorse this burgeoning effort to address the risk posed by operating company patents mutating into a patent troll threat.
The LOT Network nicely complements Red Hat’s Patent Promise and plays a prominent role in a comprehensive patent strategy also involving other initiatives. For example, in 2005 Red Hat helped establish the Open Invention Network, which is history’s largest patent non-aggression community and supports freedom of action for Linux. Red Hat also actively encourages others to participate in open source development, which innately reduces the risk of those others becoming patent aggressors.
Red Hat’s Upgraded Promise
The recent revisions to Red Hat’s Patent Promise arose out of its role as a dedicated open source partner. In this role, the company sought with its changes to keep its Promise current and effective in protecting open innovation into the future. To this end, Red Hat worked to augment the assurance its Promise already provided to open source supporters.
The resulting revised Promise represents, in Red Hat’s view, a raised bar for patent pledges. Red Hat tripled the open source coverage of its Patent Promise, now protecting over 99% of open source code, including popular permissive open source licenses. Every Red Hat patent is included. Red Hat made its upgraded Promise retroactive to 2002, so there would be no historical coverage gaps.
The new Promise is substantially clearer than its predecessor was, addressing Red Hat subsidiaries and transferees of Red Hat patents, and combinations of open source software with hardware or proprietary software. Also, the revised Promise promotes the growth of the open source commons by encouraging the release of matching source code. Finally, the new Promise emphasizes Red Hat’s continuing commitment to supporting the open source community by expressly stating that Red Hat intends the Promise to be binding and enforceable.
Red Hat believes its updated Patent Promise represents the broadest public commitment to protecting the open source software community. To the company’s knowledge, no patent holder has gone as far as Red Hat in making such a wide-ranging pledge.
Red Hat encourages other patent holders – including members of the LOT Network – to adopt similar patent pledges. As they do, more and broader areas of patent-free innovation will advance.
Patrick McBride is a technology lawyer specializing in patents, trademarks, copyrights, free and open source licensing, and related litigation. He has 23 years of corporate and law firm experience with innovative clients in the information technology sector, and is employed as Senior Director of Patents with Red Hat, the world’s leading provider of open source products and services for the enterprise. Patrick has an electrical engineering degree from Washington State University and a Juris Doctor degree from Georgetown University, and he is a member of the United States Patent Bar and Utah State Bar.