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Caught with legal briefs down

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America, it's said, is a litigious land with a patent system ripe for exploitation and in desperate need of reform. Red Hat's run-in with Firestar Software seems to prove that.

The Linux vendor has been receiving plaudits and its legal team patting themselves on the back for defusing a ticking time bomb of claims against its JBoss middleware partners and customers.

If Sun Microsystems has got its way, though, Red Hat could have become just another victim of patent poker in the US and left customers, partners and itself open to future claims.

Sun has succeeded in overturning the Firestar patent in question - "Object model mapping and runtime engine for employing relational database with object oriented software" - after it approached the US Patent and Trademark Office (USPTO), claiming the existence of prior art. Firestar had brought the claim against JBoss but this passed to Red Hat once it acquired the open source middleware provider in 2006.

Sun said it acted because Firestar's claim was too broad and would likely have been asserted against others in the community. Firestar has two months to appeal the rejection of its patent.

Alas, the USPTO snails moved too slowly for Red Hat's street-smart legal eagles, who took the standard approach in such matters and settled - in this case two weeks before the USPTO's decision. Did Sun not talk to Red Hat?

In another standard practice, financial terms of the settlement were not disclosed. Former Red Hat counsel Mark Webbink complimented Red Hat, though, saying it had "disposed of the claims in a fiscally responsible manner given the cost of patent litigation."

Red Hat vice president and assistant general counsel Rob Tiller has now published the details of the companies' settlement "in the spirit of freedom and openness", attempting to burnish Red Hat's reputation as a good guy acting to protect one and all in free and open source software.

What's in the deal? Red Hat has secured a covenant from DataTern and its parent company Amphion Innovations - the companies who took over the claimed patents on transfer from Firestar - not to sue Red Hat and community members over possible claims for past infringement. Also, Red Hat and community members are indemnified from losses resulting from claims brought within ten years of June 6, 2008.

"We hope it will be a useful tool both in addressing existing legal threats and also in suggesting methods for addressing threats as yet unknown," Tiller said here.

With the price of the average patent case estimated at more than $6m, most companies prefer to pay up early for a few million dollars to reduce their damages and legal fees had the case gone all the way.

It's no surprise that, from a fiscal point of view, Red Hat's legal team settled and chose, too, to cover themselves in glory.

The fact that Firestar's patent has been successfully challenged, though, proves that hard-playing legal teams will continue to game the US patent system regardless of the merits. Red Hat, its partners, customers and others in open source remain just no less vulnerable to similar actions. In that, they are in the same boat with thousands of other tech companies.®

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