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Red Hat CEO hates patent trolls, but says sometimes you just have to pay up

Red Hat CEO Jim Whitehurst says software patents impede innovation

By , Network World
May 05, 2011 01:16 PM ET

Network World - With Red Hat on the verge of becoming the first billion-dollar company focused exclusively on open source software, it has attracted quite a bit of attention -- from lawyers waving patents.

Red Hat doesn't need a legal team as big as Microsoft's, but it does spend a lot of time in court, particularly in the Eastern District of Texas, a hotbed of patent lawsuits filed by what Red Hat CEO Jim Whitehurst and others call "patent trolls."

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Red Hat paid out $4.2 million in 2008 to settle a suit brought by FireStar Software, and more recently agreed to settlements with a so-called "non-practicing entity" -- a company that sues legitimate software vendors but doesn't produce any products of its own - called Acacia Research. Acacia bills itself as a "leader in patent licensing" and nearly all of its recent press releases focus on patent acquisitions and patent licensing agreements.

Despite some victories -- including one against that same Acacia last year -- Red Hat has elected to settle with what it deems patent trolls in various cases which it cannot disclose, according to Whitehurst.

"When it's so little money, at some point, bluntly, it's better to settle than fight these things out," Whitehurst said.

Red Hat fights when it believes bigger principles are at stake. Red Hat and Novell jointly won a case against an Acacia subsidiary in East Texas last year when a jury ruled that the companies did not infringe on user interface patents. Red Hat also filed an amicus brief on behalf of rival Microsoft in a patent dispute pending before the Supreme Court.

"When we feel like people are really abusing the patent regimen, and we have a good case that the patent is invalid, that it should never have been issued, it's not a patentable thing, or there's a lot of prior art, then we fight those out," Whitehurst said during an interview with Network World at this week's Red Hat Summit in Boston.

But when Red Hat doesn't fight, the public doesn't necessarily find out. "Some of them are [public] but we often seal them in settlement," Whitehurst said.

The CEO, who repeated Red Hat's view that software patents shouldn't even exist, said they impede innovation and that the court system is not properly equipped to handle patent disputes.

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"Most of these are filed in the Eastern District of Texas, generally with a jury that has not completed college," Whitehurst said. "I have a degree in computer science, and these things are so far over my head, and it takes weeks of Ph.D.s to figure out exactly what this is, and then you're going to adjudicate it in front of a jury that really is not technically savvy. Do you think this patent is valid or not? It's both expensive and just a bizarre way to adjudicate it."

The majority of patent suits filed against Red Hat relate to middleware, Whitehurst said. Although Google is being forced -- by a jury in East Texas -- to pay $5 million for using Linux, Whitehurst said the Linux kernel itself usually isn't attacked because most principles of how an operating system works were spelled out before software patents were common.

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