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Why Software Patents Are a Joke — Literally
eburnette writes "A former Sun/Oracle employee explains how developers created patents in an unofficial contest to see who could get the goofiest patent through the system. James Gosling said, '... we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.' Now Oracle is using patents from the same folks as the basis for its lawsuit against Google."
The way patent law works now, nobody can just start up a business and invent shit. They need mountains upon mountains of patents to fight against other companies with mountains of patents. Then they need an army of lawyers to examine their inventions to make sure it doesn't violate any patents. I applaud these guys for making a mockery of the USPTO, although they were beaten to it by the USPTO themselves.
Whats next? Entire cultures seeing suicide as something cool that should be tried at least once by anyone?
This is a problem with the patent system, not with software patents themselves. The software industry is more affected because it depends much more on innovation than other industries. Plus, with the speed at which the technology moves, the length of a patent is effectively much longer than in other industries.
He seems to mean this primarily in terms of compliance with the official Java specification but one could also look at it in terms of software patent action against FOSS. I recently wrote about Microsoft's use of patents in connection with open source and got bashed for simply telling the truth: so far it's actually other companies who make the truly hostile moves. Far be it from me to defend software patents; I just mean to point out that there are different ways in which they get used, and in light of Oracle vs. Google, I believe more people will agree with me now.
One group of people James Gosling doesn't criticize are all those former Sun execs who strongly supported Oracle's acquisition of Sun because it was financially advantageous for them, only to leave the combined company as soon as possible after the closing of the deal. Many of those told the FOSS community that Sun had patents that could be very dangerous for open source, and Oracle was such a "reasonable" patent holder that it would be much better for them to acquire those patents than to take any risk that maybe Microsoft (which by the way never made a bid for Sun) could get them.
I opposed Oracle's acquisition of Sun. I also had concerns over the Java part but kept quiet about that and focused on MySQL. That's because I cooperated with Monty (the original author and founder of MySQL) and he wanted to be neutral about programming languages. For those who heard the slander that my work in that context aimed to change MySQL's license from the GPL to something else (which some even propagated here on Slashdot), I've meanwhile posted a detailed explanation, including links to several documents I used during my fight against the Oracle/Sun deal, in order to provide conclusive evidence that I argued against -- not for -- a license change. You can find that information in this blog posting (the link leads directly to a passage on MySQL and the GPL).
For years I've been criticizing all those fake solutions to the patent problem, such as "patent pledges" or the Open Invention Network (OIN). Both Google and Oracle are licensees of the OIN. The OIN patent agreement is meant to be a non-aggression pact between its members, with respect to "the Linux System".
Given that Android is a Linux distro (and a strategically very important one), it should be fully covered by the OIN as the self-proclaimed protective shield for the Linux ecosystem. Consequently, Oracle should be prohibited by the OIN cross-license agreement to sue its fellow OIN licensee Google. I'm not the only one to have raised that question. I saw Simon Phipps (OSI board member, former chief open source exec at Sun, now at ForgeRock) and Bradley Kuhn of the Software Freedom Law Center (and formerly FSF) raise the same kind of question on Twitter/identica. Now TheRegister contacted the OIN and wanted a comment on Oracle vs. Google, and the OIN declined to comment.
By the way, Eben Moglen promoted the OIN big time at LinuxCon, just a few days before Oracle announced its lawsuit.
What's certainly not a fake solution (although difficult to achieve) is the proposal to abolish software patents. The EndSoftPatents.org campaign runs the software patent wiki and has a pretty informative Wiki page on Oracle vs. Google.
I wanted to recommend this detailed blog posting (about 8,500 words, plenty of scrolling) on Oracle vs. Google.
It discussed many aspects of the dispute and in particular goes into detail on the seven patents Oracle seeks to enforce against Google, and inhowfar they may or may not read on Android.
I posted a correction in the comments there to point out that Oracle changed its stance on software patents years ago, not just after acquiring Sun's patent portfolio.
Why do you hate their right to be successful?
One that hath name thou can not otter
SCO is a copyright case. While copyright litigation can also cause problems, there's a fundamental difference: you don't infringe copyright inadvertently. Theoretically you could, but practically you won't just by coincidence write a significant number of lines of code the same way someone else did. But patents are broad and you can infringe them totally unknowingly. That's why programmers who make independent creations never have to worry about copyright but unfortunately do have to worry about patents.
Concerning standardization, both Oracle and Google (as well as IBM and Red Hat) are member of "OpenForum Europe", a lobby group in the EU that pushes for "open standards". Here's a blog posting in which I criticized the hypocrisy of that group last month. If you look at the flawed Java Community Process, that's also a serious standardization problem.
All large corporations try to use the patent system or standardization processes and standards policy to their advantage...
He seems to mean this primarily in terms of compliance with the official Java specification but one could also look at it in terms of software patent action against FOSS. I recently wrote about Microsoft's use of patents in connection with open source and got bashed for simply telling the truth: so far it's actually other companies who make the truly hostile moves. Far be it from me to defend software patents; I just mean to point out that there are different ways in which they get used, and in light of Oracle vs. Google, I believe more people will agree with me now.
You totally misinterpreted his comment, and it looks intentional. Gosling is obviously stating that Microsoft is a horrible company, but the rest of the industry has become so much worse recently that Microsoft seems benign in comparison (i.e., it is a sad truth). Microsoft is still the mortal threat to open source that it has always been.
I'm going to come right out and say it, I guess, since I'm posting AC anyway: I suspect you're shilling. This stinks like a PR campaign.
2. If you notice someone is using your invention, DON'T SUE
3. Wait for them to actually succeed, and invest time
If someone convinces a judge that you did this, then you can't collect damages under the "laches" rule.
Just to make this clear, I don't mean to defend everything Google does or did, especially in connection with Android. Most Android-based phones appear to be closed source in practical terms, and the forking you mention plays a role in that.
But the OIN is not about free software or open source values. It claims to protect companies in the open source ecosystem, and Google became a licensee a couple of years ago and now sees that it doesn't get any benefit from its membership.
What IBM does with Websphere/Apache is also forking by the way.
If "successful" means destroying all innovation, progress and freedom to develop - just to be able to kill every starter that is getting a little ground, I think you can really hate that kind of "success".
I started to feel like Oracle's acquisition of Sun will end up like Amiga focusing on CD32, Sinclair spending millions to ship that weird C5, IBM rejecting Win32 API on OS/2. You know tech stories like "Company was doing great, if they didn't make that horrible decision."
I was telling they can't be that stupid to undermine Java or MySQL, things turned out to be very different. Java and J2ME already have some questions and as this patent lawsuit is on, I am sure some companies question their inclusion of java techology in operating system, devices. Did you also figure IBM is still silent about this? If I were Ellison, I would think about it.
I beg your pardon?
Don't you mean "Large Corporations abusing a system designed to protect inventors and using it to push forward a monopoly?"
Android has pretty much played out the way that we feared: there is enough fragmentation among Android handsets to significantly restrict the freedom of software developers.
The notion that Android suffers from a huge fragmentation problem seems to be repeated everywhere, but I really don't understand where this is coming from. I've developed JME and Android applications and the amount of fragmentation on Android is mostly non-existent. Apart from some small number of device-specific bugs (that are fixed with phone updates) that won't affect most Android apps, cross-device development is a breeze. I remember JME development was way more troublesome, where model-specific versions were the rule instead of the exception.
You might not need a patent for your keyboard, but in any complex technology, you do. The Apple Vs HTC is a great example. HTC is building off of the 'no shit' next steps in cell phone technology. What is patented by Apple is stuff that, even if they did "invent" first (which is a dubious claim to even begin with), would have been invented in the very near future by others who were running down the same path. So, Apple sues HTC claiming infringement on a pile of obvious next step technologies that are absurdly broadly defined to begin with. HTCs only defense is to turn around and do the same. So, HTC has some stupid and obvious patents that they then claim Apple is infringing upon. The defensive pattens are not there to protect your technology, they are there to be used against a company trying to sue you.
Patents are like nuclear weapons. Even if you don't want to use the damned things offensively against others, you still want them so that you can threaten to use them on anyone who uses them on you.
Sadly, what this leads to is a stifling of creativity and innovation. The point of a patent is to encourage people to invent. As soon as a patent fails at that, it fails at its purpose. So, in the case of cellphone makers, it isn't like the lack of the ability to patent some overly broad technology would have prevented Apple from using and developing it. It is being used now ONLY to prevent creativity and innovation. It basically means that no one who doesn't already have an arsenal of patents can't jump into the market. The thought of a small time specialized cell phone maker jumping into the market is laughable because you can't enter the market unless you are armed to the teeth with your own defensive patents. Hell, the very reason why HTC is getting attacked by Apple is because they have the smallest patent portfolio.
AC has a point up there, especially when you consider that Microsoft doesn't sue openly, but instead makes all of its threats quietly (see also Novell's little pact, as well as various little or unpopular distros making similar pacts...) There's also the TomTom case. Microsoft wasn't exactly a Boy Scout whipping around that FAT32 patent like they had.
SCO was a copyright case, but in Microsoft's eyes, IP is IP (Ballmer has a nasty habit of not making distinctions in that particular realm either). Also, while in a similar post you go on and on about how one doesn't "inadvertently" infringe copyright, you missed something. Fact is, SCO posted (IIRC) as their one and only public 'encrypted evidence' snippet... a piece of BSD-licensed code that drifted into SysV's reference codebase even before the whole AT&T vs. Berkeley fights (I know, I know - Early Pleistocene and stuff). BUT - the point stands: anyone who has taken even a cursory glance at the whole BSD vs. SysV legal wars (and more importantly, their outcomes) knows better than to say something like "you don't infringe copyright inadvertently". Sheesh.
But anyway - while they're not as noisy about it (given their record of losing so many of such cases, little wonder why), Microsoft does do more than the usual amount of backroom intimidations and back-alley shakedowns in this whole "intellectual property" circus.
Quo usque tandem abutere, Nimbus, patientia nostra?
About 18 years ago, I did the same.. We had to come up with patents for a product that was the owner's pet project... Well, I had to come up with a patent too, since I had worked on the project, so I wrote up a patent for a steering wheel. It was a complete joke and i used as much obfuscation as I could, describing complex equations defining circular motion such as X^2+y^2=1 and the likes.. It had the other engineers in stitches... We all thought it was hilarious and the boss slipped it into the pile to go to the patent office so they could enjoy the joke as well... Some time later the boss came in stony faced and simply said "The patent for the steering wheel. No one ever jokes about it again. Ever. Period." then walked out. Seems it was the only patent that stood up to scrutiny.... All the rest were rejected... So, the owner of the "Timezone" amusement centers around Australia formally owned the patent on every electronic steering wheel that controls a vehicle... Ever invented. Anywhere. Even if it uses mechanical linkages. Especially if it was in the shape of a circle, but it also counted if was a joystick that could be moved through a "virtual circle"... Not that it didn't stop the engineers rolling around on the floor laughing for a few minutes when I told them all. Yep. another literal joke patent... And to their credit, they all kept a straight face when the "Big" boss came in to congratulate us all.
GrpA
Enjoy science fiction? "Turing Evolved" - AI, Mecha, Androids and rail-gun battles. What more could you want?
Both Google and Oracle are licensees of the OIN. The OIN patent agreement is meant to be a non-aggression pact between its members, with respect to "the Linux System".
Given that Android is a Linux distro ...
I don;t see how Android being a Linux distro is relevant in an "aggression" conducted on Java-related patents. Would you please care to elaborate?
Not saying that I do agree with software patents, not saying that OIN is a good or a bad thing, just saying that Linux != Java != Dalvik, thus the OIN issue have little relevance in my opinion. I mean, some (countries/govs) can agree to a non-proliferation nuclear pact and disagree on a carbon emission trading scheme, right?
Questions raise, answers kill. Raise questions to stay alive.
Which makes OIN rather meaningless. Linux is a tiny part of any Free Software system. In terms of binary size, it's easily dwarfed by the C and C++ standard libraries; X.org, various toolkits and so on make up a bigger blob. People have been using 'Linux' as a term to describe this entire system (and shouting down people who say GNU/Linux because 'Linux is the important bit') for so long that it's easy to forget this. If the patent pledge only affects Linux, then it doesn't cover 90% of the code on a typical Linux system.
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I was at the london science museum last week and saw something interesting on the information board regarding one of the steam engines on display. Unfortunately I didn't think to take a photograph / transcribe it, but this blog gives a summary: http://www.currybet.net/cbet_blog/2006/08/engineering-parallels-at-the-s.php
To quote the blog's transcription of the caption:
In 1769, James Watt had taken out a patent that allowed him to dominate steam-engine design and improvement. As a result, other engineers were prevented by law from developing new, alternative designs."
When the patent expired other engineers were able to innovate again, particularly Richard Trevithick. He experimented with using steam under a much higher pressure, and as a result was able to build smaller and more powerful engines, which enabled him to build the first locomotive railway engine capable of hauling a load.
So even the science museum is suggesting that patent's stiffle innovation, and have been doing so for over 200 years
They're not admitting fraud. They're admitting submitting patents that are ludicrous according to the standards of common sense, but valid according to the standards of law. They are admitting bending the rules as much as possible without breaking them, and demonstrating exactly how insane the rules actually are. They are not admitting to breaking the rules.
I am TheRaven on Soylent News
Gosling is obviously stating that Microsoft is a horrible company, but the rest of the industry has become so much worse recently that Microsoft seems benign in comparison (i.e., it is a sad truth).
It's true. I admit I've recently been thinking less bad about Microsoft. I'm not going to be a fan any time soon, but MS seems to have remained rather stationary on the Evil scale (possibly even edging slightly away from the evil end, but that might be an illusion), while everybody else seems to be in a hurry to overtake them and dive off the deep end of the scale.
10 years ago I didn't think it was possible, but in the mean time many companies have proven that it is indeed possible to be far more evil than Microsoft.
We continue to put our faith and trust in corporations and religions as the approach that will deliver humanity from the growing environmental crises that face it, largely because of the faint hope that we may find ourselves among the favored few. Yet as we watch corporations, their lawyers and the righteous battle it out and stomp on the "little people", its not hard to figure out where this is all headed. If humanity has another 300 years, I would be surprised.
Link or it didn't happen.
No, I meant literally. There were actual joke patents being filed. I don't know if any got approved, but the light switch one in Gosling's blog churned around for several years in the system before it was abandoned (as opposed to getting rejected immediately with prejudice, or not filed in the first place).