Linux distributor Red Hat is facing criticism for filing a patent application on a technology relating to the Advanced Message Queuing Protocol (AMQP), a vendor-neutral open standard that describes a protocol for middleware message passing. The patent application was filed in 2007 and was recently disclosed for the first time by the US Patent Office for a public review process that will take place before the patent is granted.
Red Hat is a leading advocate for patent reform and has traditionally joined the open source software community in expressing strong opposition to software patents. Despite a long history of involvement in patent reform activism, Red Hat maintains a growing portfolio of software patents. Red Hat says that the deficiencies of the current patent system have forced the company to collect its own patents for defensive purposes.
A pledge published in Red Hat's official patent policy declares that the company will broadly refrain from enforcing its patents against open source software. This pledge does not extend to proprietary software implementors and also excludes companies that bring litigation against Red Hat.
The advantage of holding these defensive patents is that they can be used as leverage in cross-licensing negotiations with other companies. In principle, this could make patents a valuable tool for defending the open source software ecosystem. In many cases, defensive patents collected by open source stakeholders are an unfortunate necessity without which the open source software community would be exposed to significantly greater risk.
Many critics of Red Hat's approach generally argue that defensive patents are undesirable because they impose encumbrances on technology and serve to validate the system. Another point that is often is raised is that defensive patents are largely useless for protecting against litigation from patent-holding companies that don't have any reason to need cross-licensing agreements.
Instead of filing for patents on certain technologies in order prevent others from doing so, critics say, open source software companies should simply document and publish all of their innovations so that the material can be used as prior art to block future patent litigation.
Red Hat already holds a number of patents, including one that describes a "Method and apparatus for atomic file look-up" and one for a "Debugger system using tracepoints for computer software." The company has also filed applications for patents in areas ranging from screenshot tools to DRM.
Grabbing the keys
The AMPQ patent describes a "method and an apparatus to deliver messages between applications" and specifically covers using XML in AMPQ. The reason that this patent has generated controversy is because it stakes out a critical use case of an open standard. Red Hat silently filed this patent application almost immediately after joining the AMPQ working group. It seems clear that the company did so with the intention of holding the keys to a critical part of the technology by the time the standard gained traction. This is viewed as an extremely hostile move by other members of the working group.
Kirk Wylie, a software consultant who works in the area of financial services, published a blog entry on Monday with some insight into the detrimental impact of Red Hat's patent. He explains that AMPQ working group members are required to open their IP rights for technologies that are required to implement AMPQ so that the standard can be widely adopted. Using XML as the interchange format is not formally defined as a necessary component of the standard. Wylie says that Red Hat has circumvented the IP grant by targeting an aspect that is narrowly outside of the grant's scope.
"Because XML-based exchanges, while the most common example for a custom Exchange type in the AMQP literature, are not necessary for implementation of the spec, Red Hat were quite freely able to stealth file this patent," Wylie says. "In effect, this completely poisons the well of the AMQP community, and I fail to see how, short of Red Hat granting control over the patent to some other entity, they can recover from this. It would not surprise me if this effectively kills AMQP, and with it the entire basis for the messaging component of MRG."
Wylie describes several worst-case scenarios where Red Hat could leverage this patent to stifle competing proprietary products that rely on AMPQ. For example, he says that Red Hat could potentially use it against Solace Systems, a company that sells hardware appliances for middleware messaging. He acknowledges that Red Hat--which has no record of aggressive patent enforcement--is unlikely to take such an action, but he points out that it's always possible that Red Hat could eventually sell the patent or lose control of it during the patent's lifespan.
This risk might create uncertainty about the safety of implementing the standard. Wylie believes that this could deter some developers from adopting it. He quotes FastMQ CEO Martin Sustrik who says that his company has halted further development of AMPQ support in its own open source software framework until the issue is resolved.
It's worth noting, however, that there are already a lot of broad patents today that cover various aspects of using XML for business applications. The risk of infringement already exists for potential implementors and it's not really clear that Red Hat's patent makes that risk any more tangible or immediately threatening. Red Hat is quickly becoming a major target for litigation and is increasingly finding itself in a position where it needs its own IP portfolio in order to play on even footing with its larger competitors.
As far as defensive IP practices are concerned, it seems like extremely poor form to file for broad patents on emerging standards. Regardless of how it impacts AMPQ, this move will surely alienate some of Red Hat's supporters in the open source software community and will create trepidation about Red Hat's involvement in other standards efforts. We requested a statement from Red Hat, but they were unable to provide one by publication time.
http://arstechnica.com/open-source/news/2009/03/red-hat-criticized-for-staking-out-patent-claim-on-standard.ars
