Firestar Software is suing Red Hat over a piece of software
called Hibernate 3.0, which it says infringes its patent, number
6,101,502. Hibernate was created by JBoss, and Firestar's suit says
that it notified JBoss that Hibernate violated its patent on 26th
May this year. Red Hat announced that it was buying JBoss on 5th
June this year.
The case will be the subject of added attention because Red Hat
is a leading light in the open source software movement, which is
generally opposed to software patents. Red Hat has its own software
patents policy, which says: "Red Hat has consistently taken the
position that software patents generally impede innovation in
software development and that software patents are inconsistent
with open source/free software".
The disputed software, Hibernate, connects software applications
to databases. "Firestar has been damaged and has suffered
irreparable injury due to the acts of infringement by defendants
and will continue to suffer irreparable injury unless defendants'
activities are enjoined," claims Firestar's complaint, filed to the
District Court of the Easter Division of Texas.
Though the case will be closely watched in the US, in Europe
software still cannot be patented. "Whatever the case may be in the
US, under English law computer programs 'as such' cannot be
patented," said James Duffet-Smith, a solicitor with Pinsent
Masons, the law firm behind OUT-LAW.
"However, it is well established that the application of a
computer program may be patentable if it gives a 'technical
effect'. What this means is not entirely clear – this is a
complex and grey area that needs to be clarified. IP protection for
computer programs falls in England on the whole to copyright, which
protects the expression or embodiment of an idea, rather than to a
patent which protects the idea itself. This means that protection
is much narrower in this jurisdiction, as an idea can be copied
without the way in which that idea is expressed having been
copied."
Duffett-Smith said that the fact that Red Hat is an open source
firm does not necessarily have a bearing on the case. It could,
however, mark the beginning of a decline in the number of patent
infringement cases facing open source firms, he said. "In future,
patent infringement suits for open source software may decline as
version three of the GPL, the most common open source licence, is
adopted," said Duffett-Smith.
"Version three of the GPL contains an explicit patent licence,
as opposed to the copyright licence in version two. This reflects a
widely held view in the open source community that software patents
are particularly dangerous for the ongoing development of open
source software," he said. "However, this will depend upon the open
source community embracing the new GPL, and there is no guarantee
that it will".
