Despite the rise in the number of patent trolls launching lawsuits affecting open source software, there are some glimmers of hope. The America Invents Act that was signed into law in September 2011 has provided new ways to prevent the issuance of over-broad software patents that could fuel future lawsuits.

In a session at LinuxCon today, Linux Defenders director Andrea Casillas explained how the group is using rights granted by the new law to fight patent applications. A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.

The next step is working with Linux technologists to file defensive publications, which are not patents themselves but describe an invention and place it in the public record, preventing new patents from being granted that cover the same technology. These are typically two- to three-page descriptions of the technology, which the US Patent and Trademark Office (USPTO) examiners can read when conducting their review of prior art that might invalidate or limit the scope of a new patent application. Linux Defenders has filed about 200 of these defensive publications.

"We'll work with authors or inventors or developers to take submissions, edit them, and work hand in hand with them to make these publications more effective," Casillas said, urging the Linux community to help the group identify dangerous patents and find prior art.

Defensive publications are an old strategy, but it's become more accessible to the public because of the America Invents Act, Casillas explained. "This is the first time examiners have welcomed the public interaction," she said. "Any individual can electronically submit up to three pieces of prior art at no cost per application."

Linux Defenders has filed defensive publications related to patent applications from Microsoft, Apple, and others. Generally, Casillas said defensive publications aren't going to force a company to abandon a patent application. Rather, they might force the company to limit the scope of the patent application's claims.

When asked if Linux Defenders could name examples of patent applications that were limited because of this process, Casillas and her colleagues said they're still working on a method of measuring its effectiveness. Within 6 to 9 months, they expect to implement a tool that lets them track when patent examiners use the defensive publications in the patent review process.

Linux Defenders also targets patents that have already been issued, but Casillas noted that the legal standard for invalidating patents after they're awarded is very high.

One patent lawsuit “could make Red Hat go away”

In a separate session at LinuxCon yesterday, Red Hat's Fedora engineering manager Tom Callaway discussed legal threats to open source.

Red Hat has criticized patent trolls and taken many steps to protect itself and its customers from them. Callaway said the threat can't be understated. "I do not overestimate this. Red Hat is not a small company in our industry, in open source. We're possibly the biggest. One good loss at trial on a serious set of patents could make Red Hat go away. It would be gone. That's the seriousness of patents and that's how chilling they are on our industry," he said.

In all likelihood, Red Hat isn't going anywhere. The company has a good track record defending itself and its customers in court against patent trolls. It indemnifies customers against lawsuits as part of its software subscription program, and it has built up a portfolio of defensive patents.

While paid subscriptions to Red Hat Enterprise Linux entitle customers to extra protection, Red Hat is also working on making sure Fedora—which costs users nothing—is protected from legal trouble. The company does that by analyzing all the code and making sure every piece is licensed properly, sometimes removing and replacing problematic code. This has negative consequences for the software. "We have this problem a lot in Fedora. Patents keep us from doing the things that we want to do," Callaway said.

In a recent case involving Rackspace and Red Hat, a company called Uniloc tried to get money from Rackspace for using Red Hat's Linux-based servers. Uniloc's case was thrown out, with the judge saying its patent claim is invalid because it describes a relatively simple math operation.

But defending those cases costs money, and even Red Hat has occasionally paid money to patent trolls to settle cases without going to trial.

Callaway expressed frustration about over-broad patents. Some patents are "so vague they could mean anything," he said. "They could be applied to almost anything, and the patent trolls are betting on that, that you won't fight it."

Helping patent examiners identify bad patents

Those over-broad patents, again, are what Linux Defenders is trying to stop. Vague patents often get approved in part because patent examiners spend no more than 20 hours on each application, Casillas said.

The amount of time is "pretty staggering considering how long the process takes and how important the issuance of a patent can be," she said. The 20 hours "includes going through the application, making sure it complies with formatting, your basic legal requirements, but also determining the scope of the invention."

The examiner spends about seven to eight hours searching for prior art, whether in the form of patents or other publicly available descriptions of technology, she said.

By submitting defensive publications, complete with tags making them more easily discoverable by patent examiners, Linux Defenders hopes to make the USPTO more effective.

"We're not adding to their increasing workload," Casillas said. "We're helping them with these relevant publications."