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Live by the patent, die by the patent

I know I keep bringing up patents here, but somehow I can't help myself. To me, they are things to be Viewed With Alarm, and my hope is that by making more developers aware what's going on, there's some hope to change the system before it's too late. Too late for what? How about for the ability to write and sell any software at all? We are, if things are not reformed soon, entering an era where no computer program can be produced without violating someone's patents.

What's got me going on the topic again this week are two developments regarding Sun and patents. First off, there's the new from an SEC filing that Sun has reportedly applied for a patent on a "method for licensing software to an entity, including determining a per-employee cost for the software, determining a number of employees of the entity, and determining a total licensing cost using the number of employees and the per-employee cost, wherein the total licensing cost comprises a software license for all employees of the entity and all customers of the entity."

Just in case it's been a while since your last civics course, here's the applicable part of the United States Constition, which establishes the patent system in the United States: "The Congress shall have Power To ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Do you really think the drafters of that document would consider a method of writing a license agreement to be a writing or discovery? Do you suppose the notion of patenting a way to write a contract would have met with their approval? I don't. There mere fact that someone could file for this patent is further proof that the entire patent system (not just the part that deals with software) is wildly out of control in the USA.

The second piece of news that caught my attention brings to mind the phrase "hoist with his own petard." According to the Rochester Democrat and Chronicle, Sun just lost a patent lawsuit to Kodak. Kodak sued on the basis of three patents that the acquired from Wang Labs on the theory that Java is infringing technology, and a jury agreed. Now they're asking for just north of a billion dollars in damages. Yes, billion-with-a-b.

So what is the patented technology? Well, the broadest claims are in Patent 5,206,951, which covers pretty much any scheme for objects to be able to invoke arbitrary operations on one another. I am not a lawyer, but this is apparently the same patent that Microsoft licensed when Wang started making lawsuit noises over COM, and it is broad enough that no doubt it covers .NET as well if the earlier settlement didn't give Microsoft a free pass.

One would think that with this sort of insanity going on, Sun would notice that the system was broken - but instead Sun President Jonathan Schwartz chose to use weblog for a stirring defense of intellectual property rights just a day after a jury in Rochester nailed his company's hide to the wall. He does say he's not in favor of spurious patents or those acquired only for litigation, but given the attempt to patent a licensing plan, it's hard for me to see where he would draw the line.

And in the grander scheme of things, I thoroughly disagree with those who, with Schwartz, hold that software patents encourage innovators to innovate. We are now dangerously close to the point where no innovation in software will be possible, because any new software is an invitation to lawsuit. I assume Sun thought Java was innovative - are they prepared to admit otherwise now that the Wang patents have been applied against them? And what are smaller companies, without a billion dollars in the bank, supposed to do?

As for me, I'll be writing to my Congressional representatives when I finish this column. If you're a software developer in the USA who still wants to be able to develop software in the future, you might think about doing the same. I'll also be thinking a bit more about getting into another field of work entirely - one that doesn't have this patenting madness poised to destroy it.

About the Author

Mike Gunderloy has been developing software for a quarter-century now, and writing about it for nearly as long. He walked away from a .NET development career in 2006 and has been a happy Rails user ever since. Mike blogs at A Fresh Cup.

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