Why software patents are a joke, literally

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.
Written by Ed Burnette, Contributor

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).

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