A jury in the Eastern District of Texas told Google that it owes Bedrock Computer Technologies $5 million in damages for using versions of Linux that infringe on Bedrock's patents.
Bedrock sued companies that use Linux claiming that the Linux kernel infringed on its patent for search technology. Bedrock's patent covers a search and retrieval system that allows records to expire and not be included in the search results. The suit names a long list of Linux kernels it claims infringes on its patent, from kernel 2.4.22.x to 2.6.31.x and "beyond." The Bedrock suit, filed in June 2009, also named a long list of notable defendants because they were users of the technology, including Google, Yahoo, MySpace, Amazon.com, PayPal, Match.com, AOL and others.
In 2009, Red Hat attempted to get the patent overturned by filing a declaratory judgment request with the court.
Despite the verdict handed down this month and made public on Wednesday, the fight may not be over. Sources told Network World that Google is considering an appeal. A Google spokesperson further told Network World: "Google will continue to defend against attacks like this one on the open source community. The recent explosion in patent litigation is turning the world's information highway into a toll road, forcing companies to spend millions and millions of dollars defending old, questionable patent claims, and wasting resources that would be much better spent investing in new technologies for users and creating jobs."
Meanwhile, users remain vulnerable.
"Under patent law a right holder can make assertions against vendors as well as users. This company apparently went after various Linux users, several of whom are Red Hat customers, which is why Red Hat intervened and filed a declaratory judgment request for the purpose of having the patent declared invalid," patent blogger and intellectual property activist Florian Mueller told Network World. Mueller analyzed the verdict in his FOSS Patents blog.
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Google was the first to go to trial. This finding makes it easier for Bedrock to win its pending cases against the remaining companies. Those companies will either face trial or will negotiate a license from Bedrock to drop the allegations. The case underscores the problems with software patents in the eyes of many intellectual property experts.
"I wouldn't blame the jury for determining that the patent was valid and infringed, and the $5 million amount isn't outrageous considering the large scale on which Google makes use of Linux. The jury may just have applied the law as it stands. But in my opinion the kind of software concept this patent monopolizes shouldn't be patentable in the first place," says Mueller.
The jury upheld the validity of the patent even though it was using the lesser standard of "preponderance of evidence." The Supreme Court earlier this week heard arguments from Microsoft and i4i over how much evidence should be required to overturn a patent. Microsoft argues that the less restrictive "preponderance" standard should be used and this case shows that even when it is used, a jury may still uphold a software patent.
"This patent is a threat to all Linux vendors and users in the U.S., at least in connection with servers and perhaps also on the client side. If Bedrock defeats Google in court over this patent, it will knock at many doors to collect royalties," says Mueller.
In 2006, Red Hat announced that it offered an additional service for paid subscribers of its Linux products that would indemnify them against lawsuits such as this one. To this day, its website promises, "Red Hat will now provide indemnification as an additional protection in its Open Source Assurance program ... The indemnification further protects against intellectual property infringement claims ... Customers can sign up for Red Hat's expanded Open Source Assurance program by activating their subscriptions (if they haven't done so already), logging into their RHN accounts and accepting the terms of the Open Source Assurance Agreement."
Red Hat could not be reached for comment.
Julie Bort writes the Microsoft Update and Source Seeker blogs for Network World's Microsoft Subnet and Open Source Subnet community sites. Follow Bort on Twitter @Julie188.
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