By STEVE TUCKEY, who has written on insurance issues for a decade for several national media outlets
For more than 20 years, the open-source movement has dedicated itself to the free flow of software code to allow new development of products, and also the notion of the lack of validity of many software patents.
The movement got a major boost last month when three top engineers from Google, Yahoo and Facebook, along with a former executive from Oracle, announced a startup to promote the use of a free software program known as Hadoop, which is currently playing a major role in search engine operations by making it cheaper and easier than ever to analyze data produced by the Internet. The software will remain free, but the startup hopes to make money selling support and consulting services.
The founders of Cloudera plan on taking Hadoop's capabilities from engine searches to fields such as genomics, retail and finance.
The movement also got encouragement from the judicial system when, in June of last year, the Red Hat company, developers of the Linux open-code products, settled with Firestar Software Inc. in a suit filed in 2006 in federal court in the Eastern District of Texas.
According to veteran Silicon Valley attorney and open-source advocate Mark Radcliffe, the settlement demonstrates that "the cooperative nature of the open-source industry requires a different approach to settlement of patent infringement litigation."
The suit alleged that a Red Hat product violated a Firestar patent, which related to a method for interfacing an object-oriented software application with a relational database to facilitate access to the relational database. Red Hat claimed that it did not infringe on the patent, and that the patent was invalid.
Radcliffe said that, while the settlement focused on Red Hat-branded products, the open-source industry, unlike the traditional software industry, permits third parties to create derivative works and combinations with other products.
"Traditionally, patent settlement agreements cover the company and its downstream distributors and users," Radcliffe said. "However, Red Hat has recognized that this traditional approach would not meet the needs of its community and negotiated a settlement that included upstream members of its ecosystem."
In April 2007, Microsoft prevailed in its defense of a patent infringement claim by AT&T related to copies of Windows sold overseas. The technology at issue was codecs, which is a software used to compress speech signals into data, in copies of Windows shipped and sold overseas.
The real issue became whether damages should be based only on computers in the United States or whether it should be based on computers worldwide. The U.S. Supreme Court found that Microsoft did not supply the technology at issue in the United States and that a presumption in favor of foreign law always exists for issues that arise in foreign lands.
The 2006 settlement between the Ontario-based Research In Motion and the Virginia-based NTP over alleged patent violations used in the development of BlackBerry devices by RIM continues to serve as the rallying cry for patent reform. RIM ended up paying NTP more than $600 million despite the evident flimsiness of NTP's patent claims.
April 15, 2009
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