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Today, Red Hat took a public stand challenging the standards for patenting software. In the Biliski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account. Here is a quick summary of our brief.
Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.
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Red Hat was disappointed but hardly surprised that the single-vendor, monopolist-promulgated standard, Office Open XML, made it though an unfortunately flawed fast-track ISO approval process. We also note that there remains an ongoing investigation by the European competition authorities into the practices employed in the process.
So, if you define interoperability as single vendor’s format to promote operation with that same vendor’s dominant product, you can declare victory. But Red Hat thinks governments and enterprises are not so easily confused. The Open Document Format, which has long been a multiparty-supported ISO standard, will continue to be a force in procurement decisions to be reckoned with. Government and Enterprises are tired of the lack of choice, lack of innovation, and premium rents from vendor lock-in. We doubt anyone will be confused by this outcome.
Strike One!
In our last blog posted on February 21, I proposed three test pitches for Microsoft to help judge the meaningfulness of its latest efforts to turn over a new leaf on interoperability. The first of these was to embrace the extant, multi-vendor ISO standard, ODF (Open Document Format) in lieu of its single vendor dominated efforts to create a new standard, OOXML (Office Open XML).
The first pitch was thrown in Geneva last week at the ISO ballot resolution meetings on OOXML. And we can safely say: strike one! There was no renouncement of the OOXML standard by Microsoft. Instead, every indication was business as usual.
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We want to congratulate the Free Software Foundation, the Software Freedom Law Center, and the many companies and individuals, who have all worked so diligently, for their efforts in developing version 3 of the GNU General Public License. Their work is to be commended. Red Hat believes our end user customers will benefit from several of the new provisions in GPLv3, including the patent license provisions. Red Hat will continue to contribute to projects that migrate from GPLv2 or other licenses to GPLv3, and we will look to include GPLv3-licensed projects in our future distributions. GPLv3 will also be added to the list of approved open source licenses under Red Hat’s Patent Promise.
Red Hat is a proud sponsor of and contributor to the pilot program of the Peer-to-Patent project, which launched June 15, 2007. This project, developed by New York Law School’s Institute for Information Law and Policy with the cooperation of the United States Patent and Trademark Office (PTO), will test an approach for enabling the public to participate in the patent-examination process. While this pilot will have limited scope—one year, 250 software patents—we hope that the data we gather will demonstrate the value of public inclusion in the patent-examination process, enabling the PTO to someday extend it to all filed patent applications.
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Red Hat has led and continues to lead the open source industry in promoting innovation and making free and open source software easier to consume. This includes providing our clients with the most comprehensive open source intellectual property protections through our Open Source Assurance program. Our confidence in our technology and protections for customers remains strong and has not wavered.
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