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Why Software Patents Are a Joke — Literally 311

eburnette writes "A former Sun/Oracle employee explains how developers created patents in an unofficial contest to see who could get the goofiest patent through the system. James Gosling said, '... we got sued, and lost. The penalty was huge. Nearly put us out of business. 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. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.' Now Oracle is using patents from the same folks as the basis for its lawsuit against Google."
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Why Software Patents Are a Joke — Literally

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  • by gmuslera ( 3436 ) on Tuesday August 17, 2010 @02:04AM (#33272798) Homepage Journal
    Whats next? Entire cultures seeing suicide as something cool that should be tried at least once by anyone?
  • by Anonymous Coward on Tuesday August 17, 2010 @02:05AM (#33272802)

    This is a problem with the patent system, not with software patents themselves. The software industry is more affected because it depends much more on innovation than other industries. Plus, with the speed at which the technology moves, the length of a patent is effectively much longer than in other industries.

  • by Martian_Kyo ( 1161137 ) on Tuesday August 17, 2010 @02:19AM (#33272856)

    Here's the algorithm

    1. Patent an 'invention'
    2. If you notice someone is using your invention, DON'T SUE
    3. Wait for them to actually succeed, and invest time. money and creativity in creating something useful that's loosely based on your half-baked idea that you patented
    4. Sue the successful company
    5. Profit

    or just randomly sue successful start ups until you find one that used your patent

    Patents have really lost their purpose.

    By the way I've just patented

    1 step one
    2 ???
    3 profit

    pattern so from now on I can sue anyone who used a systematic approach to generated profit.

    Anyone else chuckled after reading the name Charles Nutter?

  • by FlorianMueller ( 801981 ) on Tuesday August 17, 2010 @02:20AM (#33272868) Homepage

    For years I've been criticizing all those fake solutions to the patent problem, such as "patent pledges" or the Open Invention Network (OIN) [blogspot.com]. Both Google and Oracle are licensees of the OIN. The OIN patent agreement is meant to be a non-aggression pact between its members, with respect to "the Linux System" [blogspot.com].

    Given that Android is a Linux distro (and a strategically very important one), it should be fully covered by the OIN as the self-proclaimed protective shield for the Linux ecosystem. Consequently, Oracle should be prohibited by the OIN cross-license agreement to sue its fellow OIN licensee Google. I'm not the only one to have raised that question. I saw Simon Phipps (OSI board member, former chief open source exec at Sun, now at ForgeRock) and Bradley Kuhn of the Software Freedom Law Center (and formerly FSF) raise the same kind of question on Twitter/identica. Now TheRegister contacted the OIN and wanted a comment on Oracle vs. Google, and the OIN declined to comment [theregister.co.uk].

    By the way, Eben Moglen promoted the OIN big time at LinuxCon, just a few days before Oracle announced its lawsuit.

    What's certainly not a fake solution (although difficult to achieve) is the proposal to abolish software patents. The EndSoftPatents.org campaign runs the software patent wiki and has a pretty informative Wiki page on Oracle vs. Google. [swpat.org]

  • by Anonymous Coward on Tuesday August 17, 2010 @02:25AM (#33272890)

    The people here are either geeks without big company experience or just completely uninformed. In big companies people are patenting not for the sake of patenting but just because it means more money at the end of the month and even for the upcoming months ... you get money on disclosure, on EPO/USPTO filing and jackpot is when it is finally granted...
    Get over the patent troll kids...

    I have over 40 patent submitted and about 25 granted(it takes time ...).

  • by FlorianMueller ( 801981 ) on Tuesday August 17, 2010 @02:46AM (#33272950) Homepage

    SCO is a copyright case. While copyright litigation can also cause problems, there's a fundamental difference: you don't infringe copyright inadvertently. Theoretically you could, but practically you won't just by coincidence write a significant number of lines of code the same way someone else did. But patents are broad and you can infringe them totally unknowingly. That's why programmers who make independent creations never have to worry about copyright but unfortunately do have to worry about patents.

    Concerning standardization, both Oracle and Google (as well as IBM and Red Hat) are member of "OpenForum Europe", a lobby group in the EU that pushes for "open standards". Here's a blog posting [blogspot.com] in which I criticized the hypocrisy of that group last month. If you look at the flawed Java Community Process [blogspot.com], that's also a serious standardization problem.

    All large corporations try to use the patent system or standardization processes and standards policy to their advantage...

  • by Anonymous Coward on Tuesday August 17, 2010 @02:47AM (#33272956)

    He seems to mean this primarily in terms of compliance with the official Java specification but one could also look at it in terms of software patent action against FOSS. I recently wrote about Microsoft's use of patents in connection with open source and got bashed for simply telling the truth: so far it's actually other companies who make the truly hostile moves. Far be it from me to defend software patents; I just mean to point out that there are different ways in which they get used, and in light of Oracle vs. Google, I believe more people will agree with me now.

    You totally misinterpreted his comment, and it looks intentional. Gosling is obviously stating that Microsoft is a horrible company, but the rest of the industry has become so much worse recently that Microsoft seems benign in comparison (i.e., it is a sad truth). Microsoft is still the mortal threat to open source that it has always been.

    I'm going to come right out and say it, I guess, since I'm posting AC anyway: I suspect you're shilling. This stinks like a PR campaign.

  • by sznupi ( 719324 ) on Tuesday August 17, 2010 @02:53AM (#33272976) Homepage

    Hm, though Android is currently essentially branched from the Linux, kernel, into its own tree; even with bits of unmaintaned contributions to the mainline deleted...

    Yeah, we know it's still Linux for most practical purpose. But such perdiod of (basically) forking could be something to drag legal proceedings on for years, I guess... (in the meantime seeding doubt among manufacturers, etc.)

  • by FlorianMueller ( 801981 ) on Tuesday August 17, 2010 @02:57AM (#33272990) Homepage

    Just to make this clear, I don't mean to defend everything Google does or did, especially in connection with Android. Most Android-based phones appear to be closed source in practical terms, and the forking you mention plays a role in that.

    But the OIN is not about free software or open source values. It claims to protect companies in the open source ecosystem, and Google became a licensee a couple of years ago and now sees that it doesn't get any benefit from its membership.

    What IBM does with Websphere/Apache is also forking by the way.

  • Inventor's Oath? (Score:2, Insightful)

    by Anonymous Coward on Tuesday August 17, 2010 @03:03AM (#33273016)

    All inventors must sign an oath [uspto.gov] stating that they have disclosed all information known to them to be material to patentability. If you think your patent is invalid from the start, you are under an obligation to disclose whatever prior art you think is relevant. Am I the only one who finds it a little disturbing that luminaries are now admitting to fraud on the patent office?

  • Re:Yep (Score:3, Insightful)

    by Anonymous Coward on Tuesday August 17, 2010 @03:04AM (#33273018)

    If "successful" means destroying all innovation, progress and freedom to develop - just to be able to kill every starter that is getting a little ground, I think you can really hate that kind of "success".

  • Suicidal company? (Score:5, Insightful)

    by Ilgaz ( 86384 ) on Tuesday August 17, 2010 @03:05AM (#33273026) Homepage

    I started to feel like Oracle's acquisition of Sun will end up like Amiga focusing on CD32, Sinclair spending millions to ship that weird C5, IBM rejecting Win32 API on OS/2. You know tech stories like "Company was doing great, if they didn't make that horrible decision."

    I was telling they can't be that stupid to undermine Java or MySQL, things turned out to be very different. Java and J2ME already have some questions and as this patent lawsuit is on, I am sure some companies question their inclusion of java techology in operating system, devices. Did you also figure IBM is still silent about this? If I were Ellison, I would think about it.

  • Re:Yep (Score:4, Insightful)

    by Haedrian ( 1676506 ) on Tuesday August 17, 2010 @03:14AM (#33273042)

    I beg your pardon?

    Don't you mean "Large Corporations abusing a system designed to protect inventors and using it to push forward a monopoly?"

  • by melikamp ( 631205 ) on Tuesday August 17, 2010 @03:19AM (#33273058) Homepage Journal

    The software industry is more affected because it depends much more on innovation than other industries.

    In particular, it depends on the incremental innovation, whereas almost all new inventions are typically (and in some cases by logical necessity) are old inventions slightly reconfigured. Patents stop the incremental innovations in its tracks, since an "inventor" of a killer app has all the reasons to sue everyone in sight and none of the reasons to improve on the app. And even if the patent holder does use the monopoly profits to innovate further, it cannot possibly make up for excluding everyone else from the process. Imagine for a moment that a compiler was patented. Only a few biggest players could then afford licenses required to develop commercial software, and free OSes like BSD or GNU/Linux would be illegal. Proponents of software patents must admit that that is the way we should have went: if anything deserves to be called an innovation in software, a compiler certainly does. They also must close their eyes on the fact that the free software community produced and now maintains not one, but two best OSes of today, while competing with an entrenched monopolist. Anyone who believes that software patents are producing any good for the society is either grossly misinformed about the software market or is an enemy of the public (that is, a corporate cock sucker) and a hater of the computer science in general.

  • by Penguinisto ( 415985 ) on Tuesday August 17, 2010 @03:49AM (#33273146) Journal

    AC has a point up there, especially when you consider that Microsoft doesn't sue openly, but instead makes all of its threats quietly (see also Novell's little pact, as well as various little or unpopular distros making similar pacts...) There's also the TomTom case. Microsoft wasn't exactly a Boy Scout whipping around that FAT32 patent like they had.

    SCO was a copyright case, but in Microsoft's eyes, IP is IP (Ballmer has a nasty habit of not making distinctions in that particular realm either). Also, while in a similar post you go on and on about how one doesn't "inadvertently" infringe copyright, you missed something. Fact is, SCO posted (IIRC) as their one and only public 'encrypted evidence' snippet... a piece of BSD-licensed code that drifted into SysV's reference codebase even before the whole AT&T vs. Berkeley fights (I know, I know - Early Pleistocene and stuff). BUT - the point stands: anyone who has taken even a cursory glance at the whole BSD vs. SysV legal wars (and more importantly, their outcomes) knows better than to say something like "you don't infringe copyright inadvertently". Sheesh.

    But anyway - while they're not as noisy about it (given their record of losing so many of such cases, little wonder why), Microsoft does do more than the usual amount of backroom intimidations and back-alley shakedowns in this whole "intellectual property" circus.

  • Gosling's patent (Score:2, Insightful)

    by BrianOL ( 1880336 ) on Tuesday August 17, 2010 @03:52AM (#33273160) Homepage
    It is a really important story. When you read the patent, it becomes obvious that the patent was issued for something that is not any innovation and had been in use for years. Now the author of the patent himself admits that openly. So, what the consequences will be? Not for the battle (Oracle vs. Google) but for the war (humanity vs. patents)? None. The patent system is so deep rooted, so many things depend on it (like the value of so many corporations) that practically nothing can be done. It's frustrating: we all know it's bad, but also know it will stay this way.
  • by Yvanhoe ( 564877 ) on Tuesday August 17, 2010 @04:08AM (#33273210) Journal
    ... in America.
    This week China became #2 economy in the world. Don't you think America that it is time to worry about keeping up with innovation, USA ? You won't top Chinese labs with lawyer companies.
  • by Anonymous Coward on Tuesday August 17, 2010 @04:10AM (#33273226)
    So? Prior art is useless --It still going to take 3+ *years* to get that defense through court along with the court costs. In the mean time you have injunction served against you. Good luck staying in business.

    Only the lawyers are winning. Lets take it back.
  • by Anonymous Coward on Tuesday August 17, 2010 @05:18AM (#33273464)

    All you need to do is publish your ideas to the general public. Prior art destroys any patents if it was released before the patent. Even if it doesn't, it will when it goes to court.

  • by TheRaven64 ( 641858 ) on Tuesday August 17, 2010 @05:51AM (#33273594) Journal
    They're not admitting fraud. They're admitting submitting patents that are ludicrous according to the standards of common sense, but valid according to the standards of law. They are admitting bending the rules as much as possible without breaking them, and demonstrating exactly how insane the rules actually are. They are not admitting to breaking the rules.
  • by Anonymous Coward on Tuesday August 17, 2010 @05:53AM (#33273602)

    I disagree on one point only. The first is not "Patent an invention" but "Patent a sci-fi concept that in the future will be realized as a real product/service by someone".

    This is simply absurd. You cannot patent a lamp without a working prototype of a lamp, but you can patent an abstract software concept without showing USPTO a single line of code.

  • Re:Yep (Score:2, Insightful)

    by Anonymous Coward on Tuesday August 17, 2010 @06:13AM (#33273692)
    Big companies are good! Govemernt is evil and only want to control, not regulate. We should all be grateful when the companies mercifully exploit us, otherwise we might try to compete. Ignorance is strength, strikes are racism, freedom is an 80 hour workday at $3 an hour, the clocks are striking thirteen.
  • by turkeyfish ( 950384 ) on Tuesday August 17, 2010 @06:23AM (#33273748)

    You obviously don' t understand. Rupert Murdoch owns Fox News, which owns the republican party. The Chinese are shrewed enough to recognize that Murdoch can be easily manipulated by his insatiable greed. To maintain his business in China he has to do what the Chinese want, which is to insure that America's ability to attend to its political and economic problems are overwhelmed by mind numbing, inane "info-tainment" to rile up those incapable of thinking for themselves or support the debt they incur, yet who, by virtue of their numbers, can obstruct progress directed toward solutions of any kind that might set America on a path of "innovation" or "success". America is doomed to being caught between Glenn Beck and the lawyers, who represent Murdoch and his corporate clients. Technical advances in all spheres of human activity will steadily gravitate toward China until about 2020, when the Chinese overtake the US and call in our debts.

  • Why? (Score:2, Insightful)

    by turkeyfish ( 950384 ) on Tuesday August 17, 2010 @06:28AM (#33273776)

    Because they do it largely at everyone else's expense. Who said "success is a right" anyway? Success is not constitutionally mandated.

  • by turkeyfish ( 950384 ) on Tuesday August 17, 2010 @06:35AM (#33273804)

    We continue to put our faith and trust in corporations and religions as the approach that will deliver humanity from the growing environmental crises that face it, largely because of the faint hope that we may find ourselves among the favored few. Yet as we watch corporations, their lawyers and the righteous battle it out and stomp on the "little people", its not hard to figure out where this is all headed. If humanity has another 300 years, I would be surprised.

  • by knarf ( 34928 ) on Tuesday August 17, 2010 @06:39AM (#33273832) Homepage

    Software patents are to the IT community as malware is to operating systems.

    First thing to do with a new Windows machine is to remove the Symantec crap which it came infected with. As what to do with all those lawyers I'll just refer to Shakespeare [spectacle.org] and leave it to you, dear reader, to interpret this quote by the Bard of Avon...

  • by Anonymous Coward on Tuesday August 17, 2010 @06:51AM (#33273870)

    "So even the science museum is suggesting that patent's stiffle innovation, and have been doing so for over 200 years"

    No, they're not suggesting that.

    The science museum note provides evidence that patents can, at least in some circumstances, stifle innovation.

    Look at your sentence then look at mine and try to see the difference. Yours is a sweeping generalisation and mine is an accurate description.

    You are young and foolish.

  • by jackbird ( 721605 ) on Tuesday August 17, 2010 @08:12AM (#33274206)
    Link [ipaustralia.gov.au] or it didn't happen.
  • Re:Yep (Score:2, Insightful)

    by clarkkent09 ( 1104833 ) on Tuesday August 17, 2010 @08:19AM (#33274262)
    The point is that he is implicitly defending the government which runs the patent office and blaming businesses for bribing the "system" while ignoring the fact that if that is true then it is government officials that are accepting bribes.
  • by Walt Sellers ( 1741378 ) on Tuesday August 17, 2010 @09:33AM (#33274968)

    Its always bugged me that patents seem to be written to gain ownership of the problem instead of the solution.

    With a decent set of problem-solving skills, its easy to think about likely solutions to particular problems. Simple application of commonly-known problem-solving techniques leads quickly to certain solutions.

    Finding that a single patent somehow manages to cover all applications of all techniques is frustrating. That is more like patenting the problem.

    Finding that a patent-holder never actually built anything that ever worked is even more frustrating. Fiction is supposed to be limited to copyright and trademark.

    Since the granting of a patent is the establishment of serious rights under the law, the granting process should be equally serious.

  • Literally? (Score:3, Insightful)

    by WormholeFiend ( 674934 ) on Tuesday August 17, 2010 @09:40AM (#33275042)

    You mean "figuratively".

    http://xkcd.com/725/ [xkcd.com]

  • by eburnette ( 1871394 ) on Tuesday August 17, 2010 @10:43AM (#33275722) Homepage

    He seems to mean this primarily in terms of compliance with the official Java specification

    Unfortunately Sun (now Oracle) does not allow Apache to get an official copy of the test suite for that compliance, so they've set it up so that the Apache Harmony classlibs (used by Android) can't possibly be compliant. According to Nutter, the patents are worded so that you have to infringe them if you want to be compatible with existing Java code. But if your implementation is not compliant then you can't get patent protection. And if you can't get patent protection you get sued. That doesn't seem fair.

  • by Anonymous Coward on Tuesday August 17, 2010 @11:29AM (#33276268)

    Chinese labs? You mean Chinese "hackers" who get information from American (and European and Japanese) labs, and implement it without paying a dime or even a courtesy thank-you note.

    Certainly won't take that out with Lawyers. Maybe with Bombers.

  • by aaaaaaargh! ( 1150173 ) on Tuesday August 17, 2010 @01:55PM (#33278376)

    Even if you do it on paper, or imagine a theoretical Turing machine, a court cannot place an injunction on you to stop you from thinking or imagining. However, an inventor can get claims for a process that require, as a limitation of the claims, that the process be performed by a specific machine.

    That's exactly what I've meant: lawmakers and jurisdiction do not understand the issue. A computer is not a specific machine, it is a universal computing device (apart from its resource boundedness, which it shares with humans). With the appropriate software, e.g. Plt's redex sandbox, it can evaluate (rewrite) any formula of the lambda calculus just as a very patient mathematician can. So what you say is that the mathematician may evaluate the formula of the lambda calculus without infringing the patent, he may also use a sheet of paper and a pencil as an aid when doing this (I suppose), but when he uses a computer as an aid he might infringe the patent, even though both the computer and the mathematician could very well be nothing else than universal computing devices with slightly different resource constraints. If that is so, as incoherent as it is, I can't wait to see what judges will decide when people start to implant microchips into their brains and reprogram them to their needs. I guess then we will all pay royalties to Google and Microsoft for literally getting brainfucked by them.

    But that's not the main point. I wasn't disputing that the status quo is such that you can patent math, I was rather pointing out the patent absurdity of it. The same, by the way, for the free software movement: They are well aware that you can patent math and that this doesn't mean that you're not allowed to think about it. The fact that you can patent math is exactly what they are criticizing. The whole idea that I am not allowed to compute what I want on a universal computing device owned by me, perhaps even built on my own by myself, is absurd. It is about as absurd as if someone would say that you are not allowed to write certain phrases by a typewriter, whereas you are allowed to think the same phrases or write them down in your own handwriting.

The intelligence of any discussion diminishes with the square of the number of participants. -- Adam Walinsky