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

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?

[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.

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.

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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