Friday, October 15, 2004

SUN JUMPS ON THE "PATENT REFORM" BANDWAGON: Smarting after a devastating loss to Kodak, Sun president Jonathan Schwartz proclaims that, while useful, Intellectual Property has its limits.

"My view on the patent system in the United States is that we are too free to issue patents, so someone can patent one-click shopping, which to me is ridiculous," he said. "That's like patenting scroll-bars".

Schwartz said companies' garnering of "spurious patents" and subsequent wielding of them against innovators threatened the future of smaller companies' abilities to invest in intellectual property. He stressed, however, that such assaults did not really impact on larger players like Sun. "There's nothing in the Kodak suit that is going to threaten our long-run R&D roadmap," he said.

Sun would, he said, continue to build a "good defensive software patent portfolio" to mitigate the threat posed by those with malicious intent. "We'll stop issuing software patents on the day that spurious litigators cease suing us," Schwartz said.

Sun has been in the news lately over patent applications, with Schwartz having filed applications for the company's per-employee software pricing plan and two in relation to the company's three-dimensional Looking Glass user interface. However, Schwartz this week stressed that Sun itself had never issued "offensive patent litigation".

"That's not what we do for a living," he said.

"We choose to use innovation as a competitive weapon, not litigation. And when will we use litigation? When the breach is so severe and so fundamental and so in all likelihood echoed by a government that we choose to step into the fray. So when a contract is breached, you bet we'll get involved in litigation. When anticompetitive actions take place in the marketplace, you bet we will be a part of that discussion".

-- I have read Jonathan's blog, where he supports the patenting of software, but his statement above, as well as some of the statements in his blog, make no sense. Is there something virtuous about not engaging in "offensive patent litigation"? If so, then why bother to patent in the first place? Any practitioner knows that the only reason you patent is to acquire the capability to sue someone on those patents. The reason why so many Fortune 500's are "commoditizing" their patent filings is not just to keep their competitors in check, but also to establish a stack of patents to threaten competitors with counter-suits should they come after them in an infringement action. And I also found it curious that contract breaches were singled out as a reason to call out the lawyers (regardless whether the lawsuit was "offensive" or not), but patents were implicitly exempted from warranting legal action.

This reminds me of Xerox and their treatment of the Star UI graphical user interface which they decided not to get patent protection on back in the 70's. For those that know the legend, the GUI developed by Xerox was ultimately used by Apple and subsequently became the underpinning of the Windows operating system. People are still debating the ramifications of that decision to this day.

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