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The Patent Conversation Continues -- Sun's Jonathan Schwartz
Wednesday, October 20 2004 @ 02:26 AM EDT

The most remarkable thing that has come out of the Kodak v. Sun patent lawsuit is that everyone now is talking about software patents. That is mighty fine, especially because everyone seems to be agreeing that the US Patent Office has been granting patents that should never have been granted and that something needs to be done to fix a broken system. I call that progress.

In the knock-me-over-with-a-feather department, Monday that chorus was joined by Sun's Jonathan Schwartz, who writes in his blog about the Kodak settlement and says that "[s]ome systemic changes need to be made" to the current patent system.

I'm guessing that in his perfect world, those changes would be made retroactive to October 1st, $92 million ago.

Evidently, he reads Groklaw, because he mentions it, and he says he hopes I take no offense at a point he makes. I don't. Welcome to Groklaw, Jon. I'm very glad you expressed your awareness of some of the problems you see in the current patent system, but if I may I'd like to reply, with a question for you.

First, what Jon wrote, in part:

"Are software patents without controversy?

"No, not at all. Some systemic changes need to be made. But the assertion that patent coverage should be eliminated from the software industry makes no sense.

"There's this great irony: spend time with Sun's microprocessor team, and guess what - they're all writing software. Spend time with our data center switching team - they're all writing software, too. Viewed simplistically, computing hardware is software burned into and onto physical things. And over time, more and more routine software elements end up in hardware, for acceleration or optimization. SSL accelerators, JVM on a chip, you name it. So, where do you draw the line on patents? Firmware? FPGA's? Silicon? Systems?

"Yes, we should reform the system to stop granting spurious patents. And yes, we should disincent spurious litigation. That's what we're advocating in Europe, before the legislature there settles on the worst rather than the best of US practice. Eliminating patent coverage to benefit copyright-only companies is imbalanced - but safeguards are needed if the system is to protect innovation rather than allow predators to tax standards. Safeguards, I agree, that aren't in place today."

The elephant in the room in all software patent discussions is GNU/Linux. What about Linux? What about GPL'd software? How can the US patent system be made to fit a world that wants that software? And it does want it. Proponents of software patents need to answer that question. In Europe, they must answer it this exact minute. Because that is the real question. If you have software patents, what happens to GNU/Linux software?

I don't see how you can have both. Sooner or later, the Patent Cold War guarantees only one software company in the world, a proprietary one, or a small club of proprietary software giants, will survive. Even Cold Wars are eventually won by somebody, you know, and the patent system is set up so that only the biggest and richest can play, and whoever has the most patents wins in the last battle. Software is math, with only so many ways to do certain fundamental tasks. Once somebody has a patent on every fundamental task, then no one new can write software. Why would the world want that?

It's natural that those with stockpiles of patents would love a system where they get value from those patents. We expect you to like that, but the rest of the world has an interest in this question too. What about our interest in having software choice?

It's all very well to say that IP is what makes the world go 'round ("I believe in intellectual property. In my view, it's the foundation of world economies, and certainly the foundation upon which Sun Microsystems was built. Copyright, trademark, patent - I believe in them all"), and that paying off Kodak was your way of backing up your customers, but what about Linux developers? No, really. You use GPL software in your offerings, so you must think it is good software. How do we protect GPL software in a patent-mad world? Sun may have sufficient funds to throw at patent infringement lawsuits, but what about coders who don't have $92 million in their pocket? If the patent system is set up so only those with millions or billions of ducats to pay off the patent highwaymen can continue on the software road, how does something like Linux come to be? Do we want a system whereby only the rich can write software? If we'd had such a system from the beginning, instead of only recently, Linux could never have been written.

If large companies enjoy playing Patent Cold War with their stockpiles of patents, whether they use them for offensive purposes or only in self-defense, then I think no one in the FOSS world minds. Fire away at each other all you like, although it looks ridiculously wasteful to the rest of us. But knock yourselves out, if this is your idea of business competition. But find a way, please, if you insist on software patents, to leave FOSS out of it.

Let's be honest. Patents are a monopoly grant with a purpose, and the purpose isn't so you can make out like bandits. The whole idea is to benefit the rest of us too while allowing you to reap a fair reward for your labor for a limited period. Where, though, is the benefit to the public in the current system? I see the benefit to large companies, but where is the benefit to small and medium companies? The best they can hope for, under the current system, is to be bought by a bigger fish, and that isn't everyone's dream, you know.

What about all the programmers in the world who simply love to write Linux? They do it because they enjoy the creative challenge, and money isn't the object of it all. That's the real reason SCO can't seem to find any infringing code in Linux, by the way. There is no fun in copying code, to those whose motivation is the creative challenge of writing beautiful code.

Where is the benefit to the public, if GPL'd code is not allowed to exist, merely because its authors don't have millions or billions of dollars to play Patent Cold War?

I can think of a company here or there who might very well like it if Linux had never been born, but should the public be denied the benefit of the incredibly creative work of thousands and thousands of programmers around the world who have produced software a lot of folks love to use just to benefit one company, or even two or three? If the answer to that is no, and it is, then some accommodation needs to be made so that patents don't kill off software that isn't written with money as the goal, so that creativity is allowed to flower wherever it happens to crop up.

Do you want a world where software innovation is progressively stifled and GNU/Linux software is snuffed out by the big players? If you do, say so openly. If you don't, and you say you don't like the current system, what do you propose to safe harbor GPL'd code? Of course, Linux will continue somewhere. There will still be places where US-style patent laws don't exist, and FOSS innovation will continue at its dizzying pace, and eventually US software, crippled by patent restrictions, will become Brand X, because it will be second-best. Creativity tends to win, you know. Fighting against human creativity is like trying to eradicate dandelions. No matter what you try, they just grow back, through cracks in cement if they have to.

So, Jon, how do you propose to have patents on software but protection for GPL'd software? Or is that not a common goal?

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