Red Hat’s Patent Promise covers permissively-licensed code, offering broad protection for open innovation



Red Hat announced on Thursday a significant revision of its Patent Promise, helping to protect open innovation. That promise, originating in 2002, was based on Red Hat’s intention not to enforce its patents against free and open source software.

The expanded Patent Promise, while consistent with Red Hat’s prior positions, breaks new ground in expanding the amount of software covered and otherwise clarifying the scope of the promise. Red Hat believes its updated Patent Promise represents the broadest commitment to protecting the open source software community to date.

In its original Patent Promise, Red Hat explained that its patent portfolio was intended to discourage patent aggression against free and open source software. The expanded version published today reaffirms this intention and extends the zone of non-enforcement. It applies to all of Red Hat’s patents, and all software licensed under well-recognized open source licenses.

When Red Hat issued its first patent promise in 2002, it explained at the time that its patent portfolio is intended to discourage patent aggression in free and open source software (FOSS). Since then, the company have worked hard to discourage patent attacks through a range of initiatives, and have never used our patents offensively. “We believe our defensive approach to patents has been beneficial to the open source community as well as Red Hat,” it added.

To the extent a party makes, uses, sells, offers to sell, imports, or otherwise transfers Covered FOSS, Red Hat agrees not to use such actions as a basis for enforcing its patents against the party (“Our Promise”), subject to the limitations herein. Our Promise extends to combinations with such Covered FOSS if the claimed invention is substantially embodied in the Covered FOSS portion of a combination and if all other portions of the combination are merely enabling or general-purpose technologies or practices.

For clarity, Our Promise does not extend to hardware by itself or other non-Covered FOSS by itself. Our Promise also does not extend to the actions of a party (including past actions) if at any time the party or its affiliate asserts a patent in proceedings against Red Hat (or its affiliate) or any offering of Red Hat (or its affiliate) (including a cross-claim or counterclaim).

A party relying on Our Promise acknowledges that Our Promise is not an assurance that Red Hat’s patents are enforceable or that practicing Red Hat’s patented inventions does not infringe others’ patents or other intellectual property. Red Hat is not liable to a party relying on Our Promise for related claims brought by another based on infringement of intellectual property rights or otherwise.

Red Hat intends Our Promise to be irrevocable (except as stated herein), and binding and enforceable against Red Hat and assignees of, or successors to, Red Hat’s patents (and any patents directly or indirectly issuing from Red Hat’s patent applications).

As part of Our Promise, if Red Hat sells, exclusively licenses, or otherwise assigns or transfers patents or patent applications to a party, the company will require the party to agree in writing to be bound to Our Promise for those patents and for patents directly or indirectly issuing on those patent applications. Red Hat will also require the party to agree in writing to so bind its own assignees, transferees, and exclusive licensees.

Red Hat may modify Our Promise by publishing a new edition on this page or a successor location. The prior edition (including its treatment of previously distributed Covered FOSS) will continue to apply to versions of software distributed as Covered FOSS before the new edition is so published, while the new edition will apply to all other Covered FOSS.

Also, the prior edition (including its treatment of previously held patents and patent applications) will continue to apply to patents and patent applications that Red Hat holds before the new edition is so published, and to patents and patent applications that directly or indirectly issue from such Red Hat patents and patent applications, while the new edition will apply to all other patents and patent applications.

Nonetheless, this edition of Our Promise supersedes retroactively and prospectively any prior Promise on Software Patents.

“Red Hat’s Patent Promise now covers the lion’s share of open source code and continues to cover all of our patents. We encourage others to make commitments like these,” said Michael Cunningham, executive vice president and general counsel, Red Hat. “The innovation machine represented by the open source community is an enormous positive force for society. Our patent promise — we believe the broadest in the industry — is intended to support and nurture that community and force.”

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