Red Hat's AMQP+XML Patent Application: Stupid, Shifty, Short-Sighted

UPDATE at bottom of post
I've finally gotten word back from my moles that Red Hat has essentially stated that Patent Application 20090063418 is a defensive patent on an extension to AMQP to work around the broken US patent system.

This patent was filed for in 2007 [1]. The current state of it is that it's been opened up to public review, which is part of the new patent system process for allowing public feedback on "controversial" patents. Essentially, as of now, infringement rights have started (so if the patent actually is granted, if you infringe as of now, they can go after you), but the patent has not been granted. This process is set up so that you can object to the patent, usually via prior art (so if, for example, you were running AMQP with XML before 2007, or you have documentation in the public space that this was a known concept for extension, please let me or the patent office know ASAP).

The way the IP rights in the AMQP working group operate is that each member must agree to disclose and grant rights on any IP that they might hold that would be necessary to implement the AMQP specification, so that the specification isn't prone to stealth patents after ratification. So if Red Hat had gone for a patent on Direct Exchange Routing, they would have had to disclose that and license anybody else in the working group, rendering the patent effectively useless. However, because XML-based exchanges, while the most common example for a custom Exchange type in the AMQP literature, are not necessary for implementation of the spec, Red Hat were quite freely able to stealth file this patent.

While legally they are thus in their rights to file the patent, this is a really bad maneuver on the part of Red Hat.

Let's assume that it is in fact a defensive patent, as Red Hat are claiming. If it is, why not disclose it? And who are they attempting to defend, the wider AMQP community or themselves in a patent war with IBM or someone else? If they're worried that someone else was going to come in and patent this precise thing, why not just put prior art into the wild so that the community could oppose anybody attempting to patent just this thing?

Let's take worst-case scenario here:

• Solace Systems decides to implement AMQP in hardware
• They already have a hardware XML-based routing system (equivalent to the patent when not applied to AMQP)
• They release the product into the wild
• Red Hat realizes that they're not selling much MRG, because people prefer the Solace solution
• Red Hat sues Solace for damages

Do I think Red Hat is likely to do this? No. Do I think if I'm a commercial vendor I have to assume that Red Hat might do this at some point over the 17-year lifespan of the patent (assuming it actually is granted)? Yes, I have to. For all I know, Red Hat will sell the patent to a litigation firm and lose control over it in 13 years time, and then sue me for infringement 13 years in the past.

Yes, the US patent system is horribly, horribly broken. But looking for opportunities to build a defensive patent portfolio around an open standard is exactly what's wrong with the US patent system. More importantly, it's really bad for AMQP itself, and thus bad for Red Hat.

As we discovered at the qCon AMQP talk last week, one standard concern that potential adopters have is "when are we gonna get a 'real' company implementing this?" Not many companies are currently eager to run something that doesn't have companies with deep pockets behind it (some are because it's open source, some aren't). Why would I be an early adopter of any AMQP implementation when the spectre of stealth patents filed by AMQP implementers on any obvious extension to the spec may be lurking around? Why adopt anything if doing so opens me up to the threat of a lawsuit, when there isn't anybody around with deep pockets able to offer me indemnification as of yet?

The main factor here is that AMQP is not going to get beyond the early-adopter ghetto until and unless it is embraced by commercial vendors of MOM technology. To get past the initial early adopter hurdle, you need to eventually draw in Progress, IBM, Oracle, Tibco, Fiorano, all these guys. And virtually all of them have XML-based routing technology. What Red Hat has effectively done is said "the moment you support AMQP in your product, without neutering the XML-based routing you already have, we can sue you." What incentive do those firms have to adopt AMQP and thus build the community?

The blowback is already starting even in the Open Source world. Martin Sustrik has stated to me:

We are suspending any work on AMQP support in 0MQ till the issue is resolved.

In effect, this completely poisons the well of the AMQP community, and I fail to see how, short of Red Hat granting control over the patent to some other entity, they can recover from this. It would not surprise me if this effectively kills AMQP, and with it the entire basis for the messaging component of MRG.

In sum, this was a really, really, really short-sighted move on the part of Red Hat, and I highly encourage the community to fight this patent on grounds of Obviousness and Prior Art, both of which I think it fails in. And then to never trust Red Hat again in any standardization process.

Footnotes:
[1] : This effectively means that pretty much the first thing they did on getting involved with AMQP was to file patents on it. What a lovely approach!

UPDATE 2009-03-17
Red Hat has come out with a press release on this issue. Link to the press release and my response in my follow-up post on the subject.