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Red Hat joins charge to fend off patent madness

Current U.S. court ruling could jeopardise the future of software innovation - Linux User & Developer magazine's news reporter Rory MacDonald explains all...

This article is due to appear in issue 96 of Linux User & Developer magazine.

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A group of US companies including Red Hat, Yahoo, eBay, Electronic Arts, General Motors and HP, have joined together to challenge a recent ruling by the U.S. Court of Appeals for the Federal Circuit, which threatens to seriously exacerbate problems in the already highly controversial software patent system within the United States.

The group has filed a brief with the U.S. Supreme Court seeking correction of the standard for inducing patent infringement, relating to the case of Global-Tech Appliances, Inc v. SEB S.A. Under the existing ruling, the Court of Appeals held that organisations and individuals can be held liable and prosecuted for infringing patents of which they have no knowledge. It used a standard of “deliberate indifference,” which it then equated to negligence.

Taken to its logical conclusion, this ruling would effectively require anyone writing software for distribution in the U.S. to run costly patent checks on any ‘new’ concepts, in order to be assured that they were not liable for patent infringement. If the ruling is upheld, it would almost certainly stifle software innovation on a global scale and make development the preserve of corporations with large legal departments and their own patent arsenals available for countersuing.

“The serious problem of bad software patents is exacerbated by the Federal Circuit’s decision. Holding technology innovators liable for inducing infringement of patents of which they have no actual knowledge raises the already substantial risks of innovation, and is counter to the public interest,” commented Rob Tiller, Red Hat’s Assistant General Counsel for IP. “The Supreme Court’s willingness to address this issue is encouraging, and its decision could be a meaningful step to improve this important part of the patent system.”

The Supreme Court challenge is likely to be scheduled for sometime this spring.

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