Red Hat Offers a Model for Patent Licensing
by Mike Gunderloy - Jul. 17, 2008Comments (3)- Related Blog Posts
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Red Hat has spent the last couple of years dealing with a lawsuit from Firestar (later DataTern) concerning alleged patent infringement in their JBoss product. The details of the patent are not especially important at this point - what's pertinent is that Red Hat apparently paid the problem to go away, while preserving in the settlement (according to their own FAQ) broad freedom for the open source community. Now that they've released the actual settlement details, we can see how well they stack up.
The settlement does look good: it provides "a perpetual, fully paid-up, royalty-free, irrevocable worldwide license" of the patents in question. More important for the open source community, though, is the list of entities to which the settlement applies: not just Red Hat itself, but also downstream (distributors of Red Hat products and their derivatives) and upstream (contributos of code to Red Hat products) developers. In other words, if you're a member of the Red Hat ecosystem, you're covered.
The coverage isn't absolute: if you pick up software from elsewhere that happens to infringe the patents in question, and then just happen to pass your work on to Red Hat, Firestar and its successors can still sue you. As it happens, this is looking less likely thanks to some action from Sun: they petitioned the US Patent and Trademark Office for a reexamination of the original patent, and it's on the way to being invalidated.
Whatever the ultimate fate of Firestar's patent, though, Red Hat has done the open source community a service by publishing the settlement. It can serve as a model for other patent licensing agreements that work well with open source software. They key is for the licensing company to think beyond their own narrow situation and to recognize that their work does not exist in a vacuum - any patents need to extend to other open source developers who touch upon your work. Otherwise, you're just removing part of your own work from the open source universe.
