Red Hat, Google challenge software patents

The companies have filed an amicus brief contending that the burden of proof to invalidate patents impedes innovation

Red Hat, Google, Dell, and several other companies have filed an amicus brief with the U.S. Supreme Court challenging "poor quality" software patents, Red Hat said on Thursday.

The brief, filed in the case of Microsoft v. i4i Limited Partnership, contends the burden of proof applied to invalidate patents impedes innovation and should be changed. The case concerns whether a party attempting to show that a patent should never have been granted must establish invalidity by clear and convincing evidence. Amicus parties argue this standard favors holders of bad patents and should be replaced by the standard of preponderance of evidence.

[ A Supreme Court ruling last year kept software patents intact. Oracle's lawsuit against Google's Android, also involves the issue of patents. | Keep up on the day's tech news headlines with InfoWorld's Today's Headlines: Wrap Up newsletter. ]

"Burdens of proof sound technical, but they make an enormous practical difference in how lawsuits come out," said Rob Tiller, assistant general counsel for IP at Red Hat, in a statement released by the company. "As things now stand, the clear-and-convincing burden prevents invalidation of lots of patents that should never have been granted. A decision from the Court that corrects that would be great for software innovation."

An industry analyst, however, called for patent reform.

"Patent issues are escalating, and I wonder if this is the best way to attack the issue versus more radical patent reform," said analyst Al Hilwa, of IDC. "Patents are the law of the land, but as the number of patents escalates and more code moves to open source, developers are increasingly the target of claims on their code. To me this calls for more structural reform."

Available at Red Hat's website (PDF), the brief also explains how large numbers of bad patents are issued based on minimal review and how those bad patents hinder innovation, Red Hat said. Even when there is strong evidence of invalidity, this evidence often is technical and it may be difficult for a jury without a technical background to conclude the evidence is clear, the company said.

Other companies participating in the brief include Verizon, Consumer Electronics Association, Comcast, Hewlett-Packard, HTC, Intuit, L-3 Communications, LinkedIn, Lockheed Martin, MasterCard, the New York Times, Rackspace, Shutterfly, Software & Information Industry Association, Time Warner, Wal-Mart, and Zynga.

Red Hat has previously filed amicus briefs with the U.S. Supreme Court, including one this past December seeking a reversal of a court decision that threatens to expand patent litigation, the company said.

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