The Linux Beacon--Red Hat and Novell Nailed by First Linux Lawsuit

Newsletters	Subscriptions	Forums	Safari	Store	Career	Media Kit	About Us	Contact	Search	Home

Volume 4, Number 38 -- October 16, 2007

Red Hat and Novell Nailed by First Linux Lawsuit

Published: October 16, 2007

by Timothy Prickett Morgan

Well, it was bound to happen sooner or later, and honestly, the wonder is that it has not happened already. After years of setting up patent trusts and portfolios to bolster the open source community in general and the Linux operating system in particular, and several Linux and server vendors offering indemnification against lawsuits relating to Linux, two companies have launched the first lawsuit alleging that Linux violates their patents and copyrights.

Because Red Hat and Novell are the dominant commercial Linux suppliers, they were the ones slapped with the lawsuit brought by two patent trawlers. The plaintiffs in the case are IP Innovation, a Texas limited liability corporation that is based in Northbrook, Illinois, and Technology Licensing Corporation, a similar firm based in Carson City, Nevada. IP Innovation is a unit of Acacia Technologies Group, which is a division of Acacia Research, which controls over 81 different patent portfolios related to various technology areas. (You can read the lawsuit they have filed here.) The lawsuit was filed last week in the U.S. District Court for the Eastern District of Texas, which is a court that has been more friendly than others in the United States when it comes to patent litigation, which is why Acacia has a limited liability corporation located in East Texas even though it does business in Illinois.

IP Innovation and Technology Licensing apparently share the three patents and related copyrights that are at the heart of the suit, which oddly enough all have exactly the same name: "User Interface With Multiple Workspaces for Sharing Display System Objects," which are numbered 5,072,412 (from December 10, 1991), 5,533,183 (from July 2, 1996), and 5,394,521 (from February 28, 1995). The two plaintiffs allege that Red Hat's Enterprise Linux and Novell's SUSE Linux Enterprise Server and SUSE Linux Enterprise Desktop infringe on the three patents listed above, and say further that the two companies knowingly and actively are enticing others to infringe on the patents in question. IP Innovation and Technology Licensing also say that the alleged infringement continues to do economic damage to them, and therefore they are entitled to an immediate injunction from the court to restrict the sale and distribution of Red Hat's and Novell's Linuxes. The two companies are also asking that the court increase the damages awarded because of the alleged willful nature of Red Hat's and Novell's transgressions, and they ask further for a trial by jury to settle the matter.

The suit comes just as Red Hat's general counsel, Mark Webbink, is retiring from Red Hat to join the faculty at Duke University's law school. According to Duke University, Webbink will still help Red Hat as a special counsel for intellectual property, and this is relevant since Webbink was the architect of Red Hat's Patent Promise coverage for customers. Ironically, or perhaps fortunately, the date on the lawsuit (October 11) coincided with Novell's updating of its Technology Assurance Program, which provides Linux customers with protection from lawsuits alleging violations of copyright, patent, trademark, and trade secrets on the part of third partiers.

Neither Red Hat nor Novell have issued statements on the lawsuit yet, accept to acknowledge that the suit exists. It will be interesting to see if the two companies come to the conclusion that they should just license the disputed technology or fight it in the courts--the latter will take a lot more money, but it may dissuade future lawsuits and therefore be less costly in the long run. Since IP Innovation and Technology Licensing are not IT solution providers themselves, there is really no mechanism to do cross-licensing of patents to diffuse the situation. But it is possible that Novell, which holds considerable patents, could do some sort of hunt through its patents and find something in the IP Innovation and Technology Licensing patent portfolios that is in conflict with its own patents and sue them right back, at least evening the odds. Red Hat's patent portfolio is much smaller, since it has never had proprietary software on which to base patents.

It seems very unlikely that the two companies will follow the tactics of the SCO Group and not only sue IT players for infringing its patents and copyrights--in this case, IBM, Red Hat, and Novell are involved in complex litigation regarding SCO's rights over the Unix operating system--but also end users who make use of Linux. (SCO sued AIX and Linux customers as part of its lawsuits stemming from the original IBM case from March 2003.)