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Red Hat, Novell sued for patent infringement

Intellectual property company alleges patent infringement by the top two Linux sellers--and by extension, the free and open-source programming movement.

Suddenly all those discussions about the discordant ways of open-source software and patent law have become a lot less abstract.

Companies called IP Innovation and Technology Licensing Corporation sued Red Hat and Novell on Tuesday, claiming the top Linux sellers' software products infringe U.S. patent 5,072,412, "User interface with multiple workspaces for sharing display system objects," and two identically named patents. The suit (PDF), in the U.S. District Court in Eastern Texas, seeks damages and a permanent injunction prohibiting any further infringement.

Red Hat spokeswoman Leigh Day said Friday only that the company is aware of the suit and "will review the situation." Novell spokesman Bruce Lowry said the company is assessing the suit and that "it's too early to tell, tactically, whether it makes sense for us and Red Hat to join forces."

But as with another recent case, the Software Freedom Law Center's copyright infringement suit against Monsoon Multimedia, which takes the offensive in enforcing free and open-source programming interests, the ripples will likely travel well beyond this particular case.

"Although I and many attorneys in the open-source industry have long been concerned about patent challenges to open-source companies, this case appears to be the first by patent trolls against an open-source licensor," said Mark Radcliffe, a DLA Piper intellectual property attorney who has long been involved in open-source legal matters, on his blog. IP Innovation is a subsidiary of Acacia Technologies, according to a company filing with the Securities and Exchange Commission.

Acacia has licensed patents to a wide variety of companies, including Dell, Hewlett-Packard, Intel, Samsung, Exxon, J.C. Penney, the Walt Disney Co., Wendy's, Revlon, Orbitz, General Electric and 3M, according to the company. It had revenue of $46.8 million from the third quarter of 2006 through the second quarter of 2007.

Buying a license to a patent is often the quickest way to make such lawsuits go away, and companies often do so because it can be cheaper than a multimillion-dollar, drawn-out suit that occupies many employees' hours. But licensing a patent isn't such a simple matter when it comes to open-source software.

For example, a company that distributes a program such as the Linux kernel under the General Public License (GPL) isn't permitted to do so if it doesn't grant all recipients of the software the rights it has.

And in general, the patent system is somewhat at odds with open-source software in general. The former grants a limited-term monopoly to an inventor, but the latter involves unencumbered sharing of technology.

One obvious aggressor is Microsoft. Chief Executive Steve Ballmer declared in May that Linux and other open-source projects infringe 235 Microsoft patents. And according to a BetaNews transcript of another speech this week in England, Ballmer said more recently, "People (who) use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually to compensate us."

Red Hat offers a warranty in which it promises to replace any code found to infringe others' intellectual property, and both it and Novell offer customers legal protections. They have deeper pockets than most open-source companies, but they are by no means the only distributors of Linux-based products.

Groklaw, a site that monitors open-source legal actions and helped bring the new suit to light, predicted the suit would be a fitting sequel to The SCO Group's long-running but faltering Linux-related cases against IBM, Novell and others. "I think SCO II has arrived," said Groklaw founder Pamela Jones in a posting Thursday evening.

Jones pounced on two Microsoft connections, both also on Acacia's Web site: Brad Brunell joined the company this month as senior vice president after 16 years at Microsoft, including general manager of intellectual property licensing, and Jonathan Taub, who joined in July as vice president after leaving Microsoft as director of strategic alliances for the company's mobile and embedded devices division.