Red Hat bought itself a patent suit when it bought the yet-to-turn-a-profit JBoss a few weeks ago for $350 million.

Red Hat and JBoss, its new wholly owned subsidiary, were sued late Monday in the District Court for the Eastern District of Texas, which has developed a reputation as the venue-of-choice for prosecuting patent litigation, by a little five-year-old privately owned Massachusetts company called FireStar Software Inc.

FireStar charges JBoss, and by extension Red Hat, with trespassing on a broad US patent it holds relating to a method for interfacing an object-oriented software application with a relational database to facilitate access to the RDBMS.

It is, we think, the very first patent infringement suit ever lodged against an open source company and is the very thing the open source crowd has feared would happen.

Perhaps the legal defense mechanisms that the open source community has been building will now be called into play.

Anyway, it's patent number 6,101,502 ('502) and was filed on September 25, 1998 and then issued on August 8, 2000 to Ontos Inc, the old object database venture.

FireStar is basically the failed Ontos reinvented, refinanced, and now reportedly profitable. It does data mapping and its EdgeNode kit provides the hooks between, oh, say, banks and SWIFT, the great money transfer machine. The name of FireStar's chief software architect Gabriel Oancea is on the '502 patent.

FireStar is not what you'd call a patent troll but anyone who goes to the FireStar web site is going to notice that it has had a relationship with Microsoft, which the open source community will likely assume is the gray eminence behind the suit

According to the story FireStar tells in its suit, it sent a letter to JBoss on May 26, a week to the day before Red Hat closed on the JBoss acquisition, advising it that Hibernate 3.0 infringed on '502.

Then on June 7 FireStar send a letter to Red Hat saying that Hibernate 3.0 infringed on '502.

FireStar wants Hibernate permanently enjoined and it wants treble damages and interest and attorneys' fees and court costs and a jury trial.

Hibernate is a critical component of the JBoss Enterprise Middleware System (JEMS) suite of products, stuff designed to make different apps work together.

Hibernate is also an open source project whose code is freely available under the Less GPL and it's at the heart of J2EE EJB 3.0 - it maps Java classes to database tables and is best with object-oriented domain modes and business logic in the Java-based middle tier - so it seems pretty safe to say that FireStar's suit is going to impact more than just Red Hat, JBoss and Red Hat's stock price, which took a hit Thursday after Red Hat posted its fiscal Q1 results and - along with not turning up with the amount of earnings expected - said that JBoss would weigh down its annual profits more than it had previously indicated. (See story below.)

Red Hat did not reveal the existence of the suit during its conference call with Wall Street, which, Red Hat maintained, didn't understand its Q1 earnings estimates.

Red Hat is apparently in a state of denial about the suit.

When we e-mailed Red Hat CEO Matthew Szulik seeking to talk to him about the suit, he first replied "have not been sued" and then said "it is a complaint - not a suit." Well, the first paragraph of the "complaint" says "this is a civil action for patent infringement" and a "civil action," according to the Thomson Gale Legal Encyclopedia, is a "lawsuit."

Red Hat has usually struck the anti-patent pose popular with the open source community and backed Florian Mueller's highly successful NoSoftwarePatents.org lobbying effort in the European Union, but in his blog Thursday Florian says Red Hat's deputy general counsel Mark Webbink lobbied a key member of the European Parliament to vote for software patents on the day before the decisive vote that brought the software patent movement in Europe to a grinding halt a year ago. Just like IBM.

Florian also remarks that Red Hat has been "at the forefront of all sorts of placebo initiatives designed to alleviate patent-related concerns of open source developers and users, such as the OSDL's Patent Commons. Depending on how the FireStar suit evolves, Red Hat may have to answer the question whether it grossly overstated the benefit of those initiatives to open source developers and users. Apparently, the patent projects supported by Red Hat haven't really discouraged FireStar from suing."

For those who want to read the slim seven-page suit for themselves, it's case number 2-06CV-258.

Source: Client/Server News