Oracle's policy statement on software patents

Sanity writes "Oracle has an interesting policy statement in which they explain that while they think software patents are wrong, they are forced to apply for patents as a defensive measure. As the world's third largest independent software producer Oracle's position gives a significant boost to the anti-patent lobby. "

Comments

Hmmm, I think they changed their minds...

[java.bean]

*laugh*

I left Oracle a few months ago. There's an intranet site describing how much money you get if you earn a patent, and the developers are definitely working towards it. In fact, working there as a developer, I had never heard of this policy. As another poster pointed out, it looks to be pretty old (Oracle is #2, not #3, and has a lot more than 8,000 employees now, more like 30,000).

Free software patent defenses

[KMSelf]

An Anti-Patent Patent League -- usually conceived as a patent pool, has been suggested by John Walker of Autodesk, L. Peter Deutsch of Alladin Software, Richard M. Stallman of FSF and LPF, and is now part of a proposal floated by Eric S. Raymond.

While theoretically workable, the obvious problem with the idea is that it hasn't been made to work yet -- though circumstances are changing. Patent pools have some serious organizational and logistical problems. Essentially it puts free software in the position of relying on the kindness of strangers, and patents are still expensive to aquire, maintain, use, and defend.

An alternative I proposed in several areas a few weeks ago is to try to extend the already significant power of copyright as used in free software licenses such as the GNU GPL, NPL, and IBM Public License. Copyright is easily aquired, already held by free software developers and interests, fairly easily defended and asserted, and lasts for fscking ever (life plus 70 years).

The mechanism is to add a termination clause to a software license which says words to the effect "this license terminates, and the rights granted, but not the obligations required, if you initiate patent infringement actions on any licensee of a class of software". The definition of the class is key -- it could be a list of important programs (say gcc, glibc, Linux, bind), a list of projects (say, any GNU project), or all programs covered under a particular license or set of licenses. This is similar in almost all respects to existing software licenses except that terminating actions are extended to a class of software rather than the immediately covered work.

I've outlined the idea a bit more fully at Infoworld Electric's Forums.

There are a number of problems identified -- businesses may be deterred from using software with such a poison pill, a company which seperates its patent holdings from its main operations may thwart the intent, penalizing beneficiaries of abusers of the license may be necessary but difficult, the clause might be considered a "patent grab" (I think it is, but there's a strong quid pro quo).

Still, if I may say so, it's an interesting and novel approach.

Pre-emptive patenting?

[rde]

This was a pleasant surprise; I tend to think of any corporation as faceless and populated with bastards.
One point, though: they say that they applied for their first software patent in 1991 as a pre-emptive measure; sort of like the germans copyrighting 'Linux'.
Is this the best way of going about it? Even though they may have an enlightened policy on patent enforcement, they're still perpetuating the myth of the efficacy of software patents.
An alternative strategy (not necessarily better) is to publish widely without patenting, while stating (very) publicly that that's what they're doing. Anyone who subsequently applied for a patent on (whatever) would be doing so on verrrrrry dodgy legal ground; there's no way they could claim with a straight face that they deserved the patent.
Of course, legal battles are expensive, more so than patent applications...

Re:Pre-emptive patenting?

[Patrik Nordebo]

They don't primarily need the patents to protect themselves from others patenting their technologies, but as a bargaining point when trying to get access to patents held by others. The software industry in the US (and probably other industries too) is rife with patent cross-licensing agreements, which are often necessary to operate. Without a patent portfolio of your own, you will be forced to pay license fees for these patents, which gets expensive, compared to the cost of applying for a patent.
At least that's my understanding of the situation.

Re:Pre-emptive patenting?

[the eric conspiracy]

Publishing results (often anonymously) to exclude the possibility of future patents is a valid and frequently practiced methodology. There are even anonymous journals in some scientific areas established for exactly this purpose. The reason for anonymity is that you often do not want to tip off your competition as to what areas you are working in, or what technologies you might be using. Another technique is to file the patent, pay to have it issue, then don't pay the maintenance fees - then the patent will lapse into the public domain.

As others have said, a big benefit of patents in the TechBiz is cross-licensing.

The problem with Oracle's stance is that for a patent to be worth anything, it has to be enforced, too. If you don't enforce it it becomes worthless. Slashdot readers might be familiar with Xerox's lawsuit against Apple where they claimed infringement on several software patents having to do with GUIs, laser printing on networks, etc. The suit was thrown out of court because Xerox had waited too long (the Lisa went on the market in 1982, and the suit was brought in 1989).

Personally I am not against software patents per se, but I think that the patent office has not been properly applying the law (novelty, unobviousness, etc.) to most software patent applications. If somebody comes up with something really worthwhile, say a debugging method that can reliably find and fix program logic errors he deserves to get a patent. This crap about business models, XOR screen hiding etc. is not what the basic idea of promoting technological advancement by encouraging R&D and the publication of results is all about.

The problem that the former patent examiner here cited is quite true. Patent examiners do not have the resources needed to really examine patents in depth. If you are smart you can get almost any invention issued as a patent - but the value of the patent is nill because it will never hold up in court. Part of the reson for the lack of resources in the Patent Office is a severe political mistake made by the Clinton regime. A few years ago the patent office raised it's fees to become self-sufficient. A good move IMHO. The problem is that it's been so succesful that the government is now draining funds from the patent office to pay for other programs. Very bad; these funds should be used to improve the patent system in the US.

It is good to see this kind of thing....

[Mithy]

....coming from a commercial organization.

It illustrates the biggest problem with software patents - that companies feel obliged to take out patents merely in order to protect themselves from litigation, making the entire patent system a self-perpetuating (and self-evident!) farce. Not least since so much (if not all?) software out there is based on _somebody's_ prior work; very little if any represents a great leap in technology, and much of it is a rehash or combination of someone else's idea(s). (From the article: "Software, especially a complex program, seldom includes substantial leaps in technology, but rather consists of adept combinations of many ideas." I agree.)

I also agree that if we must have patent law for software, it must be global. It is ludicrous in today's global market to have to file seventeen different patents if your target market is in seventeen different countries.

They also raised a good point about the monopoly issue - how many people are still using 17-year-old software that isn't "in-house" (and therefore doesn't need to worry about pesky patent law anyway)?

Of course, a lot of readers may argue that any monopoly at all is a Bad Thing, but I guess commercial software houses have to worry about return on investment, and a monopoly is usually a fairly effective way of protecting that ;)

One can be cynical about Oracle's motives for this policy, but then, it doesn't matter why you do the Right Thing, as long as you do it. :)

The question then is: can we expect to see some movement on the part of corporates to lobby governments to do something about patent law?

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This isn't the post you're looking for. Move along.

The Anti-Patent Patent League

[Paul Crowley]

I don't see any problem with "defensive patents". In fact, I think we should start taking out a few of our own!

Here's the scheme: we all set up and join the Anti-Patent Patent League. The only condition for membership is that you license all your patents to all other members - you can charge what you like or impose what restrictions you like on non-members. You don't have to have any patents to join: indeed, you can join simply by agreeing to the Patent Sharing Pledge.

Then the FSF allow you to use such patents in GPL v3, and hey presto! Disavow the patenting system, or be locked out of the biggest patent block in history.

There are some tricky technicalities, but it seems like the free software community's answer to defensive patents to me. Maybe Oracle would join...
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Hey, this is five years old!

[Paul Crowley]

A little URL editing gives us the containing directory, with lots of statements about patents from lots of major companies (Autodesk's seems good, there's also IBM, Borland...) - and the last modified date is 29 May 1994. There's more material on patents in the parent directory - have a poke around.

Sorry to post thrice in one thread, but I thought it was worthy of note...
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More companies' statements on software patents

[hobbit]

In the same directory:

Adobe
Autodesk
Borland
IBM
Intel
Microsoft
SGI
Sun
Synopsis
Taligent
Time Warner
Windriver

Some pro, some anti, as you might expect.

Patents as used by 'big' companies

[substrate]

Patents are used a bit like cards in a poker game in the technology field. This goes for both hardware and software patents. The company I work for (I do hardware) encourages patent applications with perks. A patent itself is usually a worthless thing to have but they offer protection against lawsuits. A lot of patent related law suits are resolved outside of the courtroom. Company A takes legal action against company B for patent infringement. There may or may not be actual patent infringement (its sometimes hard to tell without going into microscopic details into the particular producs). Company B takes a look at Company A's product line and looks for any relavent patents it holds. If it finds some they play their hand, or packet of patents, against Company A. Often this results in a cross licensing agreement or a settlement outside of court.

Whenever you see a company suing somebody then do an about face and reach a cross licensing agreement remember the above. There's a good chance that was what happened.

Some patents are valuable: those that represent improvements over the state of the art that get around an otherwise (apparently) insurmountable problem. Almost all of the 'bad' software patents don't fall into that category though, they are just ways of doing things.

An enlightened view..

[Kitsune Sushi]

I wonder how many software companies have the same view as Oracle? It's not really something I've followed up on because most companies seem to be rather self-serving, and I only know of a few companies (Oracle, Red Hat) and non-profit organizations (Free Software Foundation) who appear strongly against patents.. Unfortunately, any one of them by themselves isn't likely to change a whole lot (because I doubt Microsoft really wants to abolish software patents :).. Have these different companies ever tried working together on applying pressure on this issue, or even talked with each other about doing so? It seems like that's what is really needed: a concentrated effort by several companies working together to lobby against these silly patent laws.

Do they still believe it five years on?

[Shirotae]

I noticed the page was not at the oracle site. A little probe shows that this is one of several
statements by various companies.

The directory listing reveals the date:

oracle.html 30-May-1994 02:36

and the IBM (and others) testimony reveals more:
Public Hearing on Use of the Patent System to Protect Software Related Inventions
Transcript of Proceedings Wednesday, January 26, 1994 San Jose Convention Center

The statement itself is old news but does anyone know if anything was done about more and better trained patent examiners?

I agree..

[josepha48]

Being a former patent examiner I'd have to agree that the patent system needs to be redone.

As a former examiner I can say that it is not the examiers fault, as patent examiners have quotas to meet. These quotas prevent many new examiers from doing a proper search. Meny of the topics that are sent to the patent office are not easily understood either. I had to deal with patents on many different topics, from input devices to display adapters.

It was difficult to even attempt to become an expert in the field. In programming you usually concentrate on one or two languages, or a efw related languages. In patents you have a lot of informnation that you have to deal with and much of the time it is info that you may never have heard of.

I did have some friends that were dealing with researching patents that delt with software, and it is very hard to reject these patents. There are no good sources of information for them, and many of then do not have programming backgrounds.

Definition of "Patent Flooding"

[Paul Crowley]

I didn't know what this term meant, so I did a Google search which turned up these definitions:

[...] "patent flooding," the practice of filing large numbers of patents with narrow claims and utility models to "surround" a rival's basic patent on a core technology. ( BRIE Working Paper 89)

In Japan, filing would expose them to patent piracy of their technology through "patent flooding," i.e., inundating the Japanese Patent Office with hundreds of unworthy patent applications using minuscule modifications of the American invention, followed by bullying tactics to get cross-licensing agreements. ( The Patent Fight Gets Ugly)

and this extended article: Technology Transfers to Japan: Legal and Cultural Frameworks (search for "flooding").

Just Another Patent System Stupidity, it seems.
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Reform not eliminate

[Arandir]

There's a lot of people in the Free Software community who want to abolish patents entirely. Although I understand and agree with their sentiments, I don't think it has to go this far. Some very simple, basic reforms would eliminate 95% of the problems. The other 5% we can live with.

The way patents work (in the US at least) is that a patent is filed, a non-expert lawyer in the patent office grants it, and it's then up to third parties to bring it to court to repeal it. It's backwards!

Granting patents to software is not bad in and of itself. But what makes it so onerous is that most of the software patents being granted are silly. In regards to traditional (non-software) inventions, one can patent a new type of mousetrap, but one is not allowed to patent mousetraps per se.

The basic criteria of patents used to "novel and unintuitive to an expert in the field". Furthermore, it must be no prior use. The US Patent Office employs zero experts in the software field. They are unqualified to determine if an algorithm is novel or unintuitive. They are also incapable of determining if an algorithm has been used before.

There are two simple reforms that I think would make a big difference. First of all, the filers should demonstrate that the algorithm is novel and unintuitive, and it not prior art. During the patent process they would have to submit reports from experts saying so, and others in the industry could do this as well, for or against. I know that proving a negative is impossible, but one can still provide evidence of it. Second, the algorithm must be described in detail so that it is distinguishable from all other algorithms. It is the algorithm that is being patented, not the results. This would eliminate patents on "a method to locate data across a network" (mousetraps in general), and instead the patent would have to be "a method to route search requests using a xxx protocal over a yyy network which is 33% faster than the zzz method" (a specific mousetrap).

The exact details would have to be hashed out by the lawyers, of course. But the stupid process of file, grant and only then challenge must stop.

Mutual Defense Against Software Patents

[Anonymous Coward]

The League for Programming Freedom has written just such a proposal.

Their point is that no one company can build up a strong enough patent portfolio to defend itself.