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10/26/2004
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Sun Gets The Patent Treatment

Can you blame Kodak for asserting its patent rights? After all, lawsuits like this are a proven source of income.

The timing seemed almost scripted. A couple of weeks ago, I downloaded Java 5, the newest version of the Sun Microsystems programming language, just a day before a court ruled against Sun in what could become a landmark software-patent case involving Java. Eastman Kodak had filed suit against the company in 2002, arguing that Java infringes upon three of its patents covering object-based technologies--patents Kodak acquired with its purchase of Wang Software in 1997.

The penalty phase of the lawsuit is starting, and Kodak is asking for a $1.06 billion (yes, billion) lump-sum payment. If Kodak succeeds, the ruling could be a huge blow not only to the financially strapped Sun, but also to the Java language, whose latest version sports the most improvements in years. Among them: generic types, which help developers provide common functionality with multiple data types; and annotations, which let developers provide metadata within source files, facilitating debugging and documentation.

Where Java will end up, no one really knows. But the uncertainty may very well cause programmers to second-guess their "write once, run anywhere" platform of choice.

Is There a Case?

Although Kodak's victory could be damaging to Java, is the suit itself frivolous? The most critical criterion for a software patent is that the invention must be a nonobvious improvement to prior works. "This determination is made by deciding whether the invention sought to be patented would have been obvious to one of ordinary skill in the art," according to BitLaw (www. bitlaw. com). The assessment of what's obvious is indeed subjective.

You can't fault Kodak for asserting its patent rights. Businesses exist to make money, and patent lawsuits are a proven source of income. Working in Kodak's favor is the fact that Microsoft settled with Wang Software in 1995 over one of the same patents in a dispute over OLE. Microsoft's current .Net platform uses similar technology.

Still, the U.S. Patent Office--either because it doesn't understand the nuances of digital technology or because it is too understaffed to carry out the proper research--is prone to handing out too many patents for obvious software advances. As a result, it's stifling innovation by locking up not only the code, but also the original idea, for 20 years. In a software industry that relies upon reuse and patterns, that means lots of extra time and money spent on work-arounds to avoid patent claims.

Several independent groups have risen up to stymie what they see as software-patent proliferation. The nonprofit Software Patent Institute (www. spi.org) aims to make it easier for patent officials and others to find descriptions of existing software technology, to help ensure that patents aren't granted for prior art. The Electronic Frontier Foundation (www.eff.org) and the Public Patent Foundation (www.pubpat.org) are working to overturn patents that they think have been issued in error. The League for Programming Freedom (lpf.ai.mit.edu) is lobbying to end software patents altogether.

Legal Options

Sun still can appeal the court's decision. At that time, the company will no doubt restate the two main arguments it made during the original trial: that Kodak's patents aren't legitimate and that it didn't violate them in the first place.

But Sun may have no alternative but to dip into the $2 billion rainy day fund it received from Microsoft earlier this year, $900 million of which went to settle patent-violation claims. What goes around comes around.

Mike Lee is Network Computing's editor. Write to him at mlee@nwc.com.

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