Red Hat defends Microsoft in i4i patent dispute

Microsoft's Supreme Court fight against i4i has ironically become a new rallying point for the tech industry to fight software patents.

Red Hat, Verizon, and Hewlett-Packard have jumped in to provide support to Microsoft in its patent dispute with i4i. The group combined forces to file an amicus brief to the U.S. Supreme Court on Wednesday that challenges poor quality software patents. [PDF]

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Earlier this week, The Electronic Frontier Foundation, Public Knowledge and the Apache Software Foundation issued their own pro-Microsoft-anti-bad-software-patent position as well. Isn't it ironic that a software vendor known for its large store of patents is the one that open source advocates have rallied behind to end stifling software patents?

Other giants from across industries have already voiced support of Microsoft and against the software patent system, too. These include Google, Consumer Electronics Association, Comcast, Dell, HTC, Intuit, L-3 Communications, LinkedIn, Lockheed Martin, Mastercard, The New York Times, Rackspace, Shutterfly, Software & Information Industry Association, Time Warner, Wal-Mart, and Zynga, Red Hat says.

If there's anything that can get the titans of the tech industry to unite, it's a software patent dispute where the little guy can bring the giant to its knees. On May 20, 2009, i4i won a $290 million judgment against Microsoft. i4i claimed that Word's custom XML feature violated i4i's patent on the technology. But more important than the money, the ruling took the almost unheard of step of issuing a permanent injunction that stopped Microsoft from selling copies of Word that used the disputed XML technology. This affected Word 2007, Word 2003 and Word for Mac 2008. That injunction took effect on January 11, 2010 and all legal attempts to get it overturned failed.In November, the Supreme Court agreed to hear the case.

Note that i4i is not a so-called patent troll, meaning that the company didn't buy the patent in order to shake down others for infringing on it. The company's current CEO, Michel Vulpe, and Stephen Owens filed for the patent in 1994 and it was awarded in 1998 (patent #5,787,449). It covers a process that makes it possible for computer users to use regular word processors as XML /SGML editors. On the other hand, just because i4i came by this patent in earnest, doesn't mean it isn't the kind of "bad" software patent that has the tech industry's panties in a bunch.

The amicus brief filed on Wednesday argued the question of "Whether a party disputing a patent’s validity must prove invalidity by clear and convincing evidence." In other words, if a company is suing you for patent infringement, and your defense is that the original patent isn't valid, are you then required to come up with a higher standard of proof that the patent isn't valid than the patent owner used to get the patent? The brief argues that the answer should be no, and that if Congress won't fix the situation, then the Courts should.

It says: "All too often, the requirement that a party prove a patent’s invalidity by clear and convincing evidence skews the inquiry and causes courts and juries to sustain invalid patents. Amici provide, sell, or use products and services incorporating large numbers of components that can and do attract wrongful allegations of patent infringement. Those allegations are often based on invalid patents, but they are nonetheless costly and risky to defend, in part because of the clear-and-convincing standard. Those costs and risks often force accused infringers to pay significant litigation settlements even when accused of infringing invalid patents—a reality that encourages abusive patent suits and discourages innovation, raising the cost of goods and services without any corresponding value to the consumer."

Because this case included an injunction and will go before the Supreme Court, it has now become the mantel behind which tech companies have piled on in the hopes to fix the ailing software patent system. Monetary awards alone wouldn't likely have stirred the legal hearts of so many. In 2010, Microsoft reported that it was fending off 50 patent infringement suits that all told, added up to billions in potential losses. Red Hat doesn't routinely offer arguments to help Microsoft on its patent defense cases.

Hope that the Supreme Court would end the software patent problem had previously been put on the Bilski case, which could have all but eliminated them if the Supreme Court had issued a ruling that made "business process" patents difficult-to-impossible to obtain. Most software patents fall into the "business process" category. The Supreme Court's ruling on Bilski, however, managed to sidestep that issue and create more confusion, not less. Red Hat has been fighting this battle against software patents for a while. It filed amicus briefs with the U.S. Supreme Court in December 2010 and another in October 2009 in the Bilski case.

Julie Bort writes the Microsoft Update and Source Seeker blogs for Network World's Open Source Subnet and Microsoft Subnet community sites. Follow Bort on Twitter @Julie188.

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