Of patents and promises

Sam Varghese
Monday, 22 January 2007 05:33

Opinion and Analysis

Microsoft Office 365

 Red Hat's general counsel Mark Webbink says the ideas in the patents came solely from Cox. "The ideas in the patents are all those of Alan Cox. The idea behind Red Hat's Patent Promise, which makes these and other Red Hat owned patents available for implementation under reciprocal open source licenses, was a joint work of Alan and Mark Webbink," he said in response to a question.

One of the inventions which Cox seeks to patent is a rights management system. The other is an apparatus and method for managing digital rights with arbitration.

While there is no onus on a patent applicant to search for prior art, which could invalidate his or her application, before submitting the application, Webbink said the fact that Red Hat was spending between $US25,000 and $35,000 in filing an application meant that it was not an exercise in frivolity.

"It is not accurate to say that an applicant has an obligation to search for prior art. US patent law and regulations require a disclosure of any prior art known to the applicant or those involved in the prosecution of the
application, but they do not impose an obligation to search for prior art," he said.

"That said, given the cost of prosecuting a patent application (US$25-35,000) and the fact that you can be held liable for a fraud upon the patent office if you fail to disclose prior art of which you are aware, there is a strong incentive not to bury your head in the sand."

Additionally, Webbink said, Red Hat is participating in a pilot project where the company would be exposing its patent applications to peer review (and thus prior art known to others) during the prosecution of the application. Hence there was little point in being a patent troll.