Sun Files For Patent on Software Licensing Method

cft_128 writes "CNet writes that Sun Microsystems President Jonathan Schwartz has filed for three new patents, one of them on the companies per-employee software pricing plan. The pricing patent application was summarized: 'Method for licensing software to an entity, including determining a per-employee cost for the software, determining a number of employees of the entity, and determining a total licensing cost using the number of employees and the per-employee cost, wherein the total licensing cost comprises a software license for all employees of the entity and all customers of the entity.' The plan was introduced last year on Sun's Java Enterprise System, charging $100 per employee. Schwartz did say that any money the patents generate will be donated to charities."

Comments

Re:Sun, the charity from hell

[Halo1]

This reminds me of the stealing with a further ethical effect analogy to the granting of software patents in Europe.

Re:I am missing out

[Halo1]

If that flies, next I'll patent discounts off MSRP, that'll be really slick.

You're too late, sort of. In Europe, there is already a patent on using rebate codes in Internet stores to give people discounts (see patent 19 of the FFII webshop).

Re:I am missing out

[Halo1]

... which should have failed the "not innovative because it's obvious" test.

Actually, it should have failed the patentable subject matter test (which is performed before they look at novelty or obviousness), because it's either a business method or a computer program, neither of which is patentable according to the European Patent Convention.

Bad patent laws are like all other laws. If there are enough bad laws, it brings all law into disrepute, and people no longer feel obliged to obey them. We're seeing this with both patents and abusive copyright extensions.

The problem with being an outlaw is that it immediately weakens your position, even if you're "right". We need at least some respect for the law (even if it doesn't suit you), otherwise society as we know it would disolve into total anarchy. It's very hard to make it objectively clear that the law is plain wrong in a certain case as far as the general interest in concerned, and that you're not just promoting your personal (or small lobby group's) interests.

Historically, the best example of this was probably Prohibition. It resulted in criminals becoming folk heroes (Bonny and Clyde, Al Capone, etc)... And we're going to see the same effect with patent laws. People WILL ignore them, because there will be so many bad patents, that there will be no moral imperative to toe the line.

I hope that in Europe, we can prevent the legalisation of patents on software-implemented mathmatics and business methods so it doesn't have to come this far. And just maybe, it may help the push for a real reform in the US as well.

Patently Obvious

[solprovider]

Assuming you accept and obey the license terms, most home consumer software is sold for:
1. You (one person),
2. Your computer (one installation), or
3. Your household (one business unit.)

Sun is selling a per-business-unit license, but charging different prices for different number of people. A company believes it is licensing as #3, but they pay as if it is #1. The advantage is that Sun gets to charge for employees that will not be using the software.

It was called a "volume discount" when the price was lowered as volume increased. The big innovation from Sun is that the price-per-employee increases as the volume increases (because the company will be paying for more unused licenses.) We do not yet have a term for that because it is silly.

Re:But Sun is cool

[msobkow]

No, a licensing model cannot be patented. Anyone who thinks it should be patentable is smoking crack.

Even phone company pricing packages are often very, very similar with only the promotional name and actual values used for the billing calculations changing.

Re:Its not been granted... yet, if it ever will be

[Halo1]

there is NO SUCH THING AS A DEFENSIVE PATENT!!!! If you don't want someone to come along behind you and patent what you do, then you publish it and establish authorship/inventorship

Sure there is. A defensive patent is simply a patent you do not intend to enforce, except if someone else sues you over something else. You can then look which of your defensive patents the other party infringes on, and countersue (which usually results in a cross licensing deal in which only the lawyers of both parties are winners).

Re:Sigh :~

[mavenguy]

The State Street decision.

I know you are arguing against the merits of this, but this is the legal basis permitting such methods to be potential subject matter eligible for patent protection in the US under 35 USC 101.

Re:Sigh :~

[Wolfbone]

Yes and unfortunately the European patent establishment is trying to drag us all down into the swamp:

"International efforts have been largely successful in creating a level playing field between the U.S. and Europe. While some differences in the application process and the granted rights remain, patentability is nearly uniform. Even modern technologies such as software are subject to widely unified treatment. Only when it comes to the very cutting-edge of the latest, controversial decisions can differences be discovered; most notable is the holding in State Street as opposed to that in Pension Benefits. However, the trend of limiting State Street's broad holding has started in the U.S., while Europe can be expected to move towards State Street at the same time -- probably leading to little practical difference soon".

[From Michael Guntesdorfer's "Software Patent Law: United States and Europe Compared"]

How to challenge with prior art?

[John Murdoch]

Several people have posted on this topic that the "innovation" that Sun is claiming is a seat license. That's not really correct--what Sun is claiming is that they are licensing software from a central source per-employee and per-month. That's (slightly) different from installing a copy-protected EXE and charging a fee for each install.

But that doesn't mean Sun has an original idea.

In the late 1990s I worked with a client to develop several web applications that were billed on a per-user/per-month basis. The applications identified users and installed copies, and permitted the end users to review their records before billing (so they could remove portions of the software from machines they weren't using, etc.). Without seeing the specifics of the Sun patent application, this sounds as though it would be a very credible example of prior art.

Which brings me to my point:
Does anyone in the community know how to provide examples of prior art to the USPTO examiner? Or is the best recourse to tell my client to call his lawyer?