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Red Hat's defence

Red Hat, in their defence, point to the agreement that required patents would be made available royalty-free and that their own Patent Promise says they will not use their patents against open source and open standards. Red Hat also suggested that people bringing up the issue were spreading FUD on behalf of commercial vendors. Red Hat have been building up a patent portfolio of what they call "defensive" patents to protect them against corporations who might mount patent attacks against their products. Although arguably defensive patents have limited utility in protecting against suits from other companies that make similar products they offer very little protection from patent trolls. Patent trolls specialise in finding weak points of attack and because they do not make products themselves cannot be counter attacked through a counter suit. It might be argued that a specific patent application was defensive if it registered intellectual property to preempt a troll applying for a patent, but in that case, it would be reasonable to expect early disclosure of the application to interested parties, such as say, the working group of a technology named in the patent.

What Red Hat omitted to say is that the patent application in question is outside the scope of the current AMQP agreement and the Red Hat Patent Promise is very explicit that it only applies to open source and free software. Red Hat have made statements that when, and if, the AMQP standard expands to include the routing element, they will include the patent application in the expanded standard, but some proprietary vendors worry that until AMQP expands to that point, they are going to be in a legal grey area and given their customers are not ones to take legal grey areas lightly, might consider avoiding implementing AMQP. Reactions to Red Hat's statement were hostile. Pieter Hintjens, of iMatix and one of the original developers of the AMQP specification, pointed out in comments on Wylie's blog that "Open standards are so fragile. They depend on so much carefully accumulated good will. They grow slowly and break easily. One of the worst crimes you can commit against that collective work is to patent it, or patent close to it, or even just draw the attention of patent lawyers to it." before going on to say "Unfortunately, as a participant on the AMQP process, I have to rank Red Hat's general behaviour since the start as a C-minus at best."

Discussions at the PMC

It was in this atmosphere that the PMC (Project Management Committee) met on Wednesday. According to the minutes John O'Hara, the chairman of the working group, said he was "disappointed by how we have conducted ourselves in public. We should discuss issues in private before arguing in public". Mark Blair of Credit Suisse is noted as saying "We need to be vendor neutral and interoperable, patents will not help this". Red Hat's Carl Trieloff said "Red Hat has gone on record to say any patent in their portfolio now, or in future, they will vote for incorporation if the PMC so desires." but Alexis Richardson of RabbitMQ pointed out that any "Solution has to work for all vendors" and "has to be suitable for all possible future vendors".

With John O'Hara wanting to take the discussion out of the public arena, it is left to AMQP evangelists like Kirk Wylie to point to a way forward. As he commented in a post in his blog after the PMC meeting "I want AMQP to work. I want the spec to be adopted. I want asynchronous MOM-based communications to flourish. I think we can move past this and AMQP will be stronger as a result.". He wants to see a clearing house for prior art for AMQP, so that the defensive effect against patents is maintained and no vendor takes a patent upon themselves to "protect" the community. He also wants to see the AMQP Working Group communicate more openly, explain more and determine what the future feature set of AMQP will be.

The entire dispute though, even when resolved, does bring up questions about how safe defensive patents are. Proponents of defensive patents suggest it is akin to the MAD (Mutually Assured Destruction) scenarios of the Cold War, where each participant had a stockpile of destructive weapons and knew that if they used their weapons, there would be retaliation. There's a number of problems with that position though. MAD only held a fragile peace, and if the weapons were ever used, the result would have been a scorched earth. It also required the participants to declare what weapons they had. Red Hat hasn't declared their arsenal of patents and patent applications. Is it time for Red Hat to come clean, declare their arsenal and return to working with the groups opposed to software patents and with the people involved in creating true open standards that can be used by all, without restrictions?

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