Open season for patent litigation makes case for reform

It seems to be open season for software patent litigation. Oracle is suing Google over its use of Java in Android. Paul Allen’s Interval Licensing is suing AOL, Apple, eBay, Facebook, Google, Netflix, Yahoo and others – the Wall Street Journal has an illustrated discussion of the patents involved here. Let’s not forget that Apple is suing HTC and that Nokia is suing Apple (and being counter-sued).

What’s next? I was reminded of this post by former Sun CEO Jonathan Schwartz. He confirms the supposition that large tech companies refrain from litigation – or at least, litigate less than they might, refrain is too strong a word right now – because they recognize that while they may have valid claims against others, they also most likely infringe on patents held by others.

The gist of Schwartz’s post is that Microsoft approached Sun with the claim that OpenOffice, owned by Sun, infringes on patents held by Microsoft thanks to its work on MIcrosoft Office:

Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.”

Sun’s retort was in relation to Java and .NET:

“We’ve looked at .NET, and you’re trampling all over a huge number of Java patents. So what will you pay us for every copy of Windows?”

following which everything went quiet. The value of .NET to Microsoft is greater than the value of OpenOffice to Sun or Oracle.

Oracle, however, seems more willing to litigate than Sun; and I doubt it cares much about OpenOffice. Might we see this issue reappear?

That said, Microsoft also has a large bank of patents; and who knows, some of them might be brought to bear against Java in the event of legislative war.

The risk though is that if everyone litigates, the industry descends into a kind of nuclear winter which paralyses everyone. Companies like Interval Licensing, which seemingly exist solely to profit from patents, have no incentive to hold back.

Can any good come of this? Well, increasing software patent chaos might bring some benefit, if it forces countries like the USA to legislate in order to fix the broken patent system.

Protecting intellectual property is good; but against that you have to weigh the potential damage to competition and innovation from these energy-sapping lawsuits.

We need patent reform now.

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