Why software patents are a joke, literally

Why software patents are a joke, literally

Summary: A former Sun/Oracle employee admits that developers created patents in a contest to see who could get the goofiest patent through the system. Now Oracle is using patents from the same folks as the basis for its lawsuit against Google.

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TOPICS: Oracle, Legal, Software
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It's a well known fact that most individual software developers detest software patents. Maybe detest isn't a strong enough word; how about loathe, dread, hate, despise, resent, and abhor? You get the picture. We dislike them almost as much as weekly status reports, deadlines, and conference calls.

So left on our own, most programmers won't write patents. This was the situation in Sun's early history, according to one of its most famous former employees, James "Father of Soul Java" Gosling. In an unusually candid blog post about the Oracle/Google patent lawsuit Sunday, he writes:

Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business.

In response, Sun engineers were asked to write as many patents as they could:

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.

What happens when you make a bunch of smart, talented people to do something they'd really rather not do? The natural reaction is to poke fun at the task, and turn it into a game. A joke:

There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.

In my last article, I mentioned that a patent from Gosling was one of seven cited in Oracle's lawsuit. These patents are among those that Oracle acquired when they bought Sun earlier this year. James isn't saying where these entries rated on the "goofy patent" scale, if at all. But another former Sun employee, Charles Nutter, has written a more detailed analysis. When considering whether or not the suit has merit, he states:

The collection of patents specified by the suit seems pretty laughable to me.

Perhaps now we know why.

Unfortunately, the joke is on all of us. It's on our economy, as we let patents choke down innovation and increase fear, uncertainty, and doubt in an already uncertain time. It's on our bottom lines, as we make busy-work for our expensive lawyers with their sparkling eyes instead of investing for the future. And it's on our collective consciousness, as we force good and decent people to act against the better angels of their nature.

As always, my opinions are my own and don't necessarily reflect the opinion of my employer or this publication (see the disclosure notice below).

Topics: Oracle, Legal, Software

Ed Burnette

About Ed Burnette

Ed Burnette is a software industry veteran with more than 25 years of experience as a programmer, author, and speaker. He has written numerous technical articles and books, most recently "Hello, Android: Introducing Google's Mobile Development Platform" from the Pragmatic Programmers.

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  • RE: Why software patents are a joke, literally

    Sad to say, the current patent minefield likely stifles innovation far more than it helps.
    CobraA1
    • Innovation and fear

      Right, because it's hard if not impossible to avoid stepping on one and because you won't even know if it's going to blow up on you until years later.
      Ed Burnette
      • In theory there is no such thing as a software patent.

        @Ed Burnette Patent law only allows patents on machines. Some patent agents have gotten too lax in defining what a "machine" is. The combination of software and the computer doing something that otherwise could not be realistically performed by a human might legitimately be called a "machine". I think current software patents are stretching this concept quite a bit. And yes patents are used as defensive weapons. Good news though, new patents submissions have dramatically declined and eventually all of these patents will flush out of the system and become public domain. The one really good thing about patents is that it requires that you publish, in detail, the invention which you are patenting. Coca-Cola's recipe, for example, is not patented and remains a trade secret.
        DevGuy_z
    • RE: Why software patents are a joke, literally

      @CobraA1

      Loverock Davidson says everything is ok that supports M$ and ZDnet will agree with him since Paul Allen owns ZDNet.........
      Over and Out
  • RE: Why software patents are a joke, literally

    This reminds me of the excessive software patenting over at Apple the past few years. Then suddenly out of no where... BAM! HTC gets sued.
    ZackCDLVI
    • Yup, Apple one of the biggest patent trolls out there

      @Zc456
      I truly hope that HTC and Nokia both prevail over Apple.
      NonZealot
      • RE: Why software patents are a joke, literally

        @NonZealot Now I wouldn't go that far. Heck, Apple use to get sued daily prior to the iPhone. In any case their likely gonna shoot themselves in the foot again.
        ZackCDLVI
      • I'm talking about Apple constantly suing others

        @NonZealot
        [i]Apple use to get sued daily prior to the iPhone.[/i]

        I don't agree but that isn't relevant to my point which is that Apple is constantly suing others, sometimes for patents, sometimes for copyright, sometimes just because something "looks and feels" like something that Apple had released even though what Apple had released wasn't Apple's original idea. Case in point: Apple suing MS for the use of a GUI. They lost that case which is good.

        Apple is constantly suing others. That makes them a troll.
        NonZealot
      • RE: Why software patents are a joke, literally

        @NonZealot Apple has been sued for Creative's music player interface, TigerDirect over the use of "Tiger" name for OS X 10.4, iPod battery life, Nano scratches, trademark infringement over digital music business (I think), faulty iPods, hearing loss, ect. Soo yeah.

        Not trying to defend them. Just saying they've been sued more times then they themselves have sued. If that makes any sense.
        ZackCDLVI
      • RE: Why software patents are a joke, literally

        @Zc456 apple has also sued the city of new York for the use of a logo in it's clean up the big apple campaign. You tell me.
        hoaxoner
      • RE: Why software patents are a joke, literally

        @NonZealot I disagree that Apple is a patent troll on the grounds that they have actual product to back up those patents. For a true patent troll look no further than that company that is suing Apple, Google, Microsoft, HTC - NTP - which has NO products that use the patents and indeed the patent number they were using is a patent that Logitech filed.

        I'm not saying I approve of all the lawsuits Apple has filed - far from it, but they do at least have an actual physical or software product to back up their patents.
        athynz
      • Queue the double standards

        @NonZealot

        Apple being sued -- GREAT
        HTC being sued -- AN INJUSTICE
        Bruizer
    • Excessive patents

      Companies say they're getting all those patents for defense against other patent suits, and then stuff like this happens.
      Ed Burnette
    • Its not only patents

      @Zc456 I heard that Apple sued a company in Australia for using its name because it was called "The Apple Store". It was a store that sold apples and had been in existence for longer than Apple.
      misceng
      • RE: Why software patents are a joke, literally

        @misceng The way the laws are written, companies must aggressively protect their intellectual property rights against all and sundry in order to retain them. Otherwise, it might be interpreted as "selective enforcement," an unfair business practice. That's why you have McDonalds sueing Sam and Edna McDonald's corner diner. Lawyers, who coincidently, I'm sure, write these laws, make tons of money on these suits.
        deanders
    • Out of nowhere???

      @Zc456

      I would not say that given all the stolen IP in Android.
      Bruizer
      • RE: Why software patents are a joke, literally

        @Bruizer

        I challenge you to find an OS, whether for desktop, phone, server, etc..., that does not infringe on someones IP.
        hito_kiri
  • RE: Why software patents are a joke, literally

    I fully agrees to Ed's articles. It the same story in my company. We submit patents for defensive reasons and contribute to the huge pile of stupidity in our industry.

    There is a big initiative going on against software patents:
    http://endsoftpatents.org/

    If you have software patents, then please support these guys.
    k_raev
    • RE: Why software patents are a joke, literally

      @k_raev Thanks for the link.
      Ed Burnette
  • RE: Why software patents are a joke, literally

    May be, over time, software companies will face that patents are NOT productive and will accept the peace of the braves... Until then, we have to face the unproductivity (fear, uncertainty, doubt, etc.) associated with patents.
    dmdevito