Sun's patent settlement sparks controversy

TalkBack: Our Leader column criticising Sun's settlement over its patent dispute with Kodak sparked strong opinions from our readers - and very strong disagreement from Sun
Written by ZDNet UK, Contributor on
Whatever the rights and wrongs of Sun's decision to settle its patent dispute with Kodak, our Leader piece on the subject certainly generated heated debate.

Sun settled a patent suit brought by Eastman Kodak relating to Java software and agreed to license Kodak's patents for $92m.

Our Leader argued that Sun had let down the whole technology industry by essentially paying of a vexatious litigant trying to enforce an unreasonable patent claim - in return for making Kodak go away.

"In no time, there'll be a legal web over the industry, with everyone paying everyone else for the rights to use their respective IP. Nothing will escape: someone will already have patented 1+1=2, and can you afford to fight it?" we argued.

Sun, however, disagreed vehemently with our analysis, issuing the following statement: "Like every other public company, Sun has a fiduciary responsibility to its shareholders and a duty to conduct business in the best interests of them and our customers. In that light, Sun has chosen to settle a pending legal matter rather than litigate it further, at additional time and expense that could be focused on our core business.

Your conclusion from this is that Sun has 'betrayed' the Open Source community. This completely ignores the fact that Sun is the second largest contributor to the Open Source community after UC Berkeley. We always have been committed to Open Source and we continue to be great believers in the creative value of that community.

At the same time, Sun believes firmly in the need to provide strong intellectual property protections, such as software patents, in order to assure that both individuals and companies will be rewarded for creativity and invention. Without that reward, no one would invest money, time nor the sweat of their brow to create the technology that today enriches all of our lives. IP protection is the armour that protects the vital organs of today's global economy.

Are there problems with today's patent systems and other intellectual property rules? Of course. No human system is ever perfect. We all need to work together, individuals, companies and governments, to deal with everything from 'junk' patents to the blatant piracy of copyrighted work around the world.

But you don't junk the entire system, as you suggest, because a small part of it isn't working. That is the height of irresponsibility for every economy in the world.'

Hartmut Pilch, of FFII & Eurolinux Alliance, leapt to our defence in a long, careful statement: "Sun Corporate Communications" called the ZDNet article irresponsible on several accounts. Unfortunately the portrait is very accurate, at least as far as Sun's "stance on intellectual property" is concerned, as "Sun Corporate Communication" shows by its own words a few lines later: "Sun believes firmly in the need to provide strong intellectual property protections, such as software patents, in order to assure that both individuals and companies will be rewarded for creativity and invention.

Sun's statements make no sense at all. Copyright and other mechanisms already assure a sufficient reward for creativity, and patents contribute very little to economic growth in most technical fields, as anybody will know who cares to read up on the economic literature.

All software patents that I have seen are "junk patents". The patent system tends to turn honorable non-trivial work into disgracefully broad patent claims, and the only practical solution to this that I know of is to change the caselaw that imposed these patents on the software industry (against its will, as the hearings of 1994 showed, where Sun was one of very few companies who, yes, betrayed the industry).

We do not need to abolish the entire patent system. We are just talking of pushing it out of the software field. If a system doesn't work, you don't release it. Fix the bugs first, then release the code. That's the sense of responsibility that I'd expect of a company like Sun. It's the basic ethics of this field. Unfortunately, Sun betrayed this basic ethic because they have a large hardware business and, based on that, a strong tradition of patenting."

Others felt we were way too harsh on Sun, and that Kodak should bear more responsibility.

One anonymous UK techie wrote: "Enough with the Sun Bashing please...Why don't you bash Kodak? They're the legal-process-abusing extortionists. Why don't you support Sun? They're the good guys and I can empathize with their situation. They were ruled against by a screwed-up jury that's clueless to technical facts and most probably biased towards, Kodak, the largest employer in their area, Rochester."

Mike Schwager, a systems administrator in Chicago, also thinks Kodak - and American patent law - is the real villain, and writes: "Put the blame where it belongs: On bogus patents, on a bogus system. Given the rules of the game, a company must play or die. It's the game itself that's broken, not the player. Europe, you've been warned! Do not follow in the footsteps of your hapless friends across the Atlantic! Reject software patents!"

And so does Rob from Yorkshire: "KODAK has betrayed us all, not Sun. I'll never buy Kodak again, and I encourage everyone else to do the same - and email Kodak to tell them this!"

For Dave Hall, a UK IT consultant, Sun and Kodak are not alone. He writes: "Unfortunately, Sun's actions are indicative of the industry as a whole, and is not a single perpetrator in this matter.

What is clearly being lost in the translation here is fair use - it's about corporations lifting their leg and marking out their turf. It's not about a set of ideals; nor is it about anything other than greed.

I suppose those who bash Sun will say Kodak was correct to accept the settlement, just as those who blast Kodak will tell us Sun can do what they like with their money.

Licensing is becoming more expensive, but short-sightedness has contributed towards this. Sun's Java-PC is a prime example: pay for the hardware, then 'rent' the software out. All this is, pure and simple, is criminal."

Vaino Vaher, a consultant in Sweden, takes an even more jaundiced view. "Yet another competitive advantage for the rest of the world. We will surely work hard to keep your lawyers out of our courts. We will not allow our IT industry to be ruined by phoney patents. Oh. And I just came up with something that I will patent in the US: A gas mixture of approx 79% nitrogen and 21% oxygene. Purpose: vitalizing and enhancing performance in mammals. I think I will call it "Air". Pay up or die."

One IT developer from the North West of England hopes that some good may come out of the whole affair: "This could be the catalyst that kicks the EU into touch about software patents. Without them, this cannot happen - and we're far better off that way over here.

It is not, however, the end of the software industry, nor of free software. It just means that America (and any nation which mimics its software patents system) will be excluded from the party.

Unfortunately, if the EU Commission listens to the megacorps, we'll have the same problem over here within a year or so, and we'll all be in the same boat, except for developing countries and eastern Asia."

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