The recent lawsuit in the Eastern District of Texas by IP Innovation LLC (and Technology Licensing Corporation) against Red Hat and Novell may be the first volley in a patent war against open source software. Acacia is a well known patent troll which has been buying patents for some time and works through multiple subsidiaries. http://trolltracker.blogspot.com/2007/10/acacia-targets-linux-in-new-lawsuit.html. Acacia describes itself as follows: The Acacia Technologies group develops, acquires, and licenses patented technologies. Acacia controls 81 patent portfolios covering technologies used in a wide variety of industries including audio/video enhancement & synchronization, broadcast data retrieval, computer memory cache coherency, credit card fraud protection, database management, data encryption & product activation, digital media transmission (DMT®), digital video production, dynamic manufacturing modeling, enhanced Internet navigation, image resolution enhancement, interactive data sharing, interactive television, laptop docking station connectivity, microprocessor enhancement, multi-dimensional bar codes, resource scheduling, spreadsheet automation, and user activated Internet advertising.
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. The open source industry provides a tempting target because of its rapid growth. This morning, Eben Moglen at the Software Freedow Law Center Seminar on FOSS issues noted that Brad Bunnell of Microsoft joined Acacia on October 1 . According to news reports, Brad spent sixteen years at Microsoft at a number of positions which included General Manager, Intellectual Property Licensing. http://biz.yahoo.com/bw/071001/20071001005590.html?.v=1
Eben raises the intriguing question about whether these incidents are related. Given the time that it takes to prepare a patent lawsuit, Brad's hiring probably did not effect the filing of this lawsuit. However the hiring may indicate the addition of a new business line for Acacia: suits against open source companies. Steve Ballmer's recent comments about Red Hat's obligation to pay Microsoft for alleged use of its patents makes this lawsuit and the timing of the move interesting.
The seminar was a very helpful overview of the FOSS industry and the next set of legal challenges now that GPLv3 has been published and SCO has been defeated. In the afternoon, the Software Freedom Law Center provided an overview of the legal issues facing FOSS development from establishing contribution policies to entities for projects to patent issues for FOSS projects. The Software Freedom Law Center will be making some final edits and be posting it on their website in the next ten days. You should check their website: http://www.softwarefreedom.org/.