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Open source IP case puts spotlight on patents

A lawsuit is brewing in the open source community that has the potential to change the way users look at software patents. Tom Carey, a Boston intellectual property attorney, tells customers to be wary when considering open source software.

There is a new open source software legal battle brewing. It concerns Red Hat Inc., JBoss, which is now a division of Red Hat, and a relatively unknown company called FireStar Software Inc. This lawsuit alleges that JBoss' Hibernate 3.0 infringes on a FireStar patent for linking relational databases with object-oriented software. Hibernate is an object-relational mapping tool for Java that's part of the JBoss Enterprise Middleware System. Boston intellectual property attorney Tom Carey argues that, for now, users might be better off taking a good look at proprietary software before jumping into open source, if only until the specifics of the case become better known. What has changed with JBoss and Hibernate that was not there six months ago? Or in 2001 when this disputed patent was first filed?

Tom Carey: The patent was filed in 2001, and Hibernate has been around while, so we can presume it has been infringing for that long if that's the case. It may be that up until now, the owner [FireStar] of the patent didn't have the money to pursue it. It may be that some new kind of contingent theory in this current litigation will surface later. Sometimes it takes a long time in these trials for answers to come around.

Now, others wonder why FireStar did not sue Oracle because, apparently, Oracle also has software that could be seen as infringing and it has even more money. But, it also may well be that JBoss was considered too small to sue because JBoss did not have the cash, although I'm skeptical of that because JBoss was recently sold for around $350 million. However, before it was sold, JBoss was privately held and perhaps FireStar really didn't know what was going on there in regard to what it was worth. With Red Hat, the information is publicly held and financial statements are available for all to see.

An interesting twist is that because under terms of the JBoss merger agreement, Red Hat is holding $43 million of the purchase price in escrow, which is supposed to protect Red Hat from breach of warranties and other such protections. So, Red Hat in a sense has $43 million in house money to play with -- to potentially pay to FireStar or pay to the shareholders of JBoss. At some level, Red Hat probably doesn't care very much who [the money] goes to. FireStar may be very skillful, or very lucky, but it has found a defendant that has free money available to make the problem go away.

Already, there have been conspiracy theories regarding Microsoft/FireStar collusion since Microsoft was a listed partner of FireStar in the past. Is FireStar getting legal assistance from Microsoft?

Carey: There is no evidence of that, but that point is really sort of intriguing, and may pop up in the discovery phase of the litigation. The fun part of the SCO case was that that company was publicly held and had to disclose many of the things it probably did not want to disclose during the course of that trial. With this trial, that kind of information is not going to be available.

Is this the very first patent infringement suit ever lodged against an open source company? Is this what many open source advocates feared could happen with patents?

Carey: I think the fears are justified, as this is a much more serious problem, potentially, than the SCO lawsuit. SCO had more warts in its case than I could stand to look at, and it is starting to get its comeuppance in court. While it's possible that there will be similar problems for this FireStar case, the whole notion of patent infringement is much more powerful than copyright infringement.

The good news about patents is that they do expire, but it takes 17 years or 20 years from the application filing. but it's not the 95 years that a copyright lasts, so there's some solace in that.

Read more open source legal advice from Tom Carey:

IBM subpoenas signal shift to darker side in SCO case

IP attorney: Why SCO has no case

IP attorney: SCO's investors are safe, but IT patent offenders aren't

How will the proprietary software companies and the community respond?

Carey: They'll all be watching out for their own hide here. I don't think there is a proprietary software community around, per se. It is individual companies -- and each individual company must look at itself and see if it's a potential defendant in this case. And if it is, it should look for prior art [any information that has been disclosed to the public in any form before a given date] along with the open source crowd.

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