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A Sun Position Paper on Software Patents, 2006 ~pj
Sunday, May 20 2012 @ 02:20 AM EDT

I can't find it on Oracle's website any more, but thanks to Internet Archive, we can find Sun Microsystems writing about software patents in 2006 and explaining its position. This was back when the European Union was for a while considering adopting software patents. You will not believe what Sun's position was. It's definitely relevant to the Oracle v. Google litigation.

Sun's position paper was titled, "Software Patents: A European Union (EU) Directive on the Patentability of Computer-Implemented Inventions must not Jeopardize Interoperability." The title says it all, but I'm going to show the entire statement to you in all its glory, so Oracle can't pretend, as it tried unsuccessfully to do with the Jonathan Schwartz corporate blog, that it wasn't an official company statement. Sun strongly urged that Europe, if it adopted the Directive, "allow for the creation of products which can interoperate with the protected products to safeguard competition in the sector and to provide greater choice and lower costs for consumers."

Imagine that. Sun said publicly that interoperability was more important than IP rights, even patents, because it led to competition and hence greater choice and lower costs for consumers.

More from the position paper:

If Europe adopts a new Directive governing the patentability of CII's it is vital that it ensures that patents do not prevent software vendors from developing and offering products which are interoperable with patented software.

Sun therefore strongly supports provisions which clarify that a software patent cannot be used to prevent software developers from engaging in reverse engineering permitted under the 1991 Software Copyright Directive (91/250/EEC) for interoperability purposes where interfaces/source codes are not published.

Moreover, a new EU CII Directive should also provide an exception in EU Member States' patent law which ensures that making, using or selling products incorporating third party patented technology necessary for the purpose of creating interoperable products are not patent infringing. This latter and critical point is not covered by the European Council's Common Position which was adopted on 7 March 2005. Sun believes failure to adjust for this concern would harm the interests of European consumers, entrepreneurs and the EU economy.

That's clear enough, isn't it? Sun wasn't in favor of the Directive, but if the EU was foolish enough to allow software patents, at least it should include a way for interoperability to be preserved.

Let's tie it into Android. 2006 is an important year in the Oracle v. Google trial, in that Google bought Android in mid-2005, and it was in August of 2005 through mid-2006 that Google and Sun were in discussions about a partnership to co-develop it, as you can see from the slides [PDF] Google used in its opening statement (slide 24). Sun's patent position statement on the EU Directive, therefore, provides a contemporaneous context that illustrates that Google was not some thieving risk taker. It had every reason to believe that Sun viewed IP rights the way it said it did, that it approved of interoperability even when APIs were not published, let alone when they were, and that even patents should not trump interoperability. Talk about waiver.

Oracle has painted it in the trial that Sun hated what Google was doing with Android but was too weak to enforce its IP "rights", and that Oracle is the "new sheriff in town", strong enough to do what Sun would have done if it thought it could. But this position paper shows that it was instead a carefully chosen policy on Sun's part, based on what it believed was the best choice for the software industry. What Oracle is now doing, according to Sun's statement in 2006, would be a grab at a kind of monopoly so as to prevent competition and raise prices. Sun was not on the same wave length with Oracle. It was of a different mind set, and there's no pretending otherwise now.

It's not insignificant to me that this position paper doesn't seem to be on Oracle's site any longer. By hiding this history, it made it possible for Oracle to serve up to the jury some rather pungent sliced baloney.

This discovery shows the huge change in position that Oracle is now asserting in this litigation, something Google had no way to predict or anticipate. And it's a crying shame that the jury doesn't know about this position paper. But at least you do now, and you can judge for yourself whether what Oracle lawyer David Boies has tried to portray as good versus evil is not instead the reverse. Is it good or evil to retroactively sue someone for relying at the time on your public *official* positions? Is it good or evil to hide the truth and serve up sliced baloney instead? You be the judge. Nobody would have said Oracle couldn't alter its position going forward in time, but retroactively? It's why the law invented concepts like waiver and estoppel, to prevent low down dealings when business interests changed over time.

Oracle's good versus evil fantasy doesn't at all match the reality of the way things really were, judging from this position paper. Removing the evidence from a website can't change reality. Nor does it prevent us from discovering the truth, if we are willing to dig long and hard enough. And I am willing. It's what Groklaw is for.

Here's the full Sun 2006 Position Statement on software patents, followed by a screenshot:

Software Patents: A European Union (EU) Directive on the Patentability of Computer-Implemented Inventions must not Jeopardize Interoperability

Issue Summary:

Although the European Patent Office (EPO) routinely issues patents on software innovations (with the intent of protecting the ideas behind the functionality of software), the enforceability of such patents remains uncertain because the EU does not have a harmonised software patent regime in place.

This, it has been argued, places European companies at a competitive disadvantage with the rest of the world. In order to create a level playing field with other regions such as the US and Japan which do have software patent laws in place, the European Commission therefore published, on 20 February 2002, a "proposal for Directive on the Patentability of Computer-Implemented Inventions" (also referred to as the draft "CII Directive" or the "Software Patent Directive") which would extend European patent protection to cover software innovations and validate the work of the EPO.

If Europe adopts a new Directive governing the patentability of CII's it is vital that it ensures that patents do not prevent software vendors from developing and offering products which are interoperable with patented software.

Sun therefore strongly supports provisions which clarify that a software patent cannot be used to prevent software developers from engaging in reverse engineering permitted under the 1991 Software Copyright Directive (91/250/EEC) for interoperability purposes ? where interfaces/source codes are not published.

Moreover, a new EU CII Directive should also provide an exception in EU Member States' patent law which ensures that making, using or selling products incorporating third party patented technology necessary for the purpose of creating interoperable products are not patent infringing. This latter and critical point is not covered by the European Council's Common Position which was adopted on 7 March 2005. Sun believes failure to adjust for this concern would harm the interests of European consumers, entrepreneurs and the EU economy.

Sun's Position:

  • Throughout Sun's history, we have stood for open systems, open standards and we have been fighting hard for interoperability in our sector.

  • Sun believes in innovation and invests billions of Euro each year in software development. We believe in protecting these investments.

  • However, Sun believes that this protection should be balanced to allow for the creation of products which can interoperate with the protected products to safeguard competition in the sector and to provide greater choice and lowers costs for consumers.

  • Interoperability is of crucial importance to preserve choice for European consumers between competing offerings, and to preserve the equality of opportunity that the European IT sector needs to flourish.

  • Regardless of whether CII patents are desirable to foster innovation in Europe, if such patents could be used to prevent software vendors from developing new programmes which can communicate with other programmes used by the customers, users may find themselves locked into buying programmes from only one vendor. This would result in increased cost and reduced choice for consumers while also hindering the growth of the overall EU market for computer implemented inventions.

  • To avoid stifling innovation and reducing users' freedom of choice, Sun believe that an interoperability exception is needed in the draft CII Directive.

  • Article 6 proposed by the European Commission, and incorporated into the Council's Common Position, is needed to stop patents on software from preventing developers from engaging in the processes of reverse engineering permitted under the 1991 EC Software Copyright Directive for the purpose of achieving interoperability. However, although Article 6 allows for the development of products through reverse engineering, it does not allow for the manufacture, sale and use of such products without a license from the right holder. This effectively leaves existing dominant rights holders with a de facto veto over new and competing products.

  • More generally, even for products which are not produced through reverse engineering, an Article 6a is needed because without it software patent holders could invoke their patent rights to prevent the production and sale of software which will interoperate with the patented and other software.

  • Sun therefore proposes a new Article 6a which addresses this problem by providing a narrow exception permitting the use of patented technology to the extent "indispensable" for the development and sale of products which interoperate with the products protected by the patented technology or with other products.

  • Sun believes this is a limited, well-defined and clear exception to the exclusive rights of patent owners which strike a proper balance between the legitimate interests of patent rights owners and third parties, including both third-party software developers and end-users.
Here's a screenshot, just to make it clear that this was an official Sun position, publicly stated and published to the world:

Like I've said, I'm old-fashioned. If you can't win by telling the simple truth, I believe justice requires that you lose.

If you'd like to know how I found this position paper, I searched on Google for the keywords

Sun Microsystems "patent policy"
And that led me eventually to this website, which listed resources on wireless patents, and Sun was listed under Industry Organisations. After that, it was just a matter of going to Internet Archive and searching for the listed url, then checking if the paper existed anywhere else on the Internet, including Oracle's site. I mention this so you can do your own digging. It's a lot of fun.

Update:And just in case someone thinks that this might be relevant to patents but not to APIs, the issue is interoperability. Let's recall what Google pointed out in answer to Judge Alsup's direct question, asking the parties whether they believed software languages were copyrightable:

Google notes that Sun (now known as Oracle America) organized, formed and led the American Committee for Interoperable Systems (“ACIS”),5 the chairperson of which was Sun’s Deputy General Counsel, Peter M.C. Choy. In a press release after the First Circuit’s decision in Lotus v. Borland, Mr. Choy “noted that the decision will make it more difficult for vendors to attempt to lock out competitors and lock in consumers by asserting proprietary rights in certain ‘building blocks’ of software, such as programming languages, program interfaces, and the functional aspects of user interfaces.” First Circuit Lotus v. Borland decision supports interoperability, Business Wire, Mar. 10, 1995 (emphasis added).6 Mr. Choy was also counsel of record for an ACIS amicus brief filed with the Supreme Court, urging the Court to affirm the First Circuit’s judgment that the Lotus menu hierarchy was not copyrightable. ACIS argued that “[t]he decisive issue in [the Lotus] case is whether copyright law can protect the rules that enable two elements of a computer system to work together.” 1995 WL 728487, at *3. ACIS further argued:
The 1-2-3 command structure is more than a user interface; it is the interface between the Lotus program and programs—referred to as “macros”—that are written by users at their own considerable expense for execution in connection with the 1-2-3 program. Because the 1-2-3 command structure provides the template for the macros and because the macros are the key to compatibility, the First Circuit, consistent with holdings in other circuits, ruled that those elements necessary to macro compatibility are not protected by copyright.
Id. (emphases added). Thus, while not directly taking a position on whether programming languages can be copyrighted, the brief implies that they cannot.

B. The APIs are integral to the Java programming language.

As Google has previously noted, Java’s own books describing the APIs state that they are available “to all Java programs . . . .” Trial Ex. 980 at xviii. Those books describe four of the APIs (out of eight that then existed) as “the foundation of the Java language.” Id. (back cover). 1. Without the APIs, the Java programming language is deaf, dumb and blind.

The APIs are so fundamental that without them the Java programming language has no ability to provide any output to the user. Similarly, without the APIs, the Java programming language has no ability to accept input from the user.

__________
5 The organization had the same mailing address as Sun’s headquarters. At the time of the Lotus case, the ACIS website was located at http://www.sun.com/ACIS/.

6 Available via LEXIS-NEXIS. Sun also distributed this press release by other means. See, e.g., http://www3.wcl.american.edu/cni/9503/4860.html.

Oracle, in answer to the same question said, among other things:
The use of an API as a specification of how software modules interact arose during the 1970s. One example from that time is prototypes written in the C programming language. Prototypes are fragments of code describing the sets of parameters to be passed to different subroutines and the types of their return values. Developers combined these code fragments with English prose specifying the behavior of the subroutines, creating API specifications similar to those written today. Other developers could learn from the API specifications how different libraries worked without having to study their underlying implementations.

The techniques of modular program development are more relevant today than ever. Professor Mitchell will testify that today's software systems are among the most complex products ever created by human beings, and APIs are the core structuring concepts software designers use to manage this complexity. (Mitchell Opp. Rep., ECF No. 397-1 ¶ 18.) Software developers often collaborate on projects from different cities or countries. (Id. ¶ 25.) They use APIs to understand the potential dependencies between different sections of code without having to know how the code for an entire project works. A developer in San Francisco, for example, can design an API for a library and then design and implement the library. A colleague in Paris need only consult the API in order to make use of that library; there is no need to know the inner workings of the library.

But Sun said that reverse engineering was vital:
Article 6 proposed by the European Commission, and incorporated into the Council's Common Position, is needed to stop patents on software from preventing developers from engaging in the processes of reverse engineering permitted under the 1991 EC Software Copyright Directive for the purpose of achieving interoperability. However, although Article 6 allows for the development of products through reverse engineering, it does not allow for the manufacture, sale and use of such products without a license from the right holder. This effectively leaves existing dominant rights holders with a de facto veto over new and competing products.
That's the veto that Oracle is trying to enforce over Android.

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