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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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A System & Method... | 361 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Sunday, May 20 2012 @ 02:27 AM EDT
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan to see what needs to be corrected and avoid duplication of
effort.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Sunday, May 20 2012 @ 02:28 AM EDT
Please stay off topic in these threads, but do adhere to Groklaw's comments
policies.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Sunday, May 20 2012 @ 02:40 AM EDT
Comments on News Picks articles go here. Please put the title of the News Picks
article in the Title Box and the clicky link to the article itself in the body
of your comment posted in HTML Formatted mode for the convenience of readers
once the article has scrolled off the News Picks sidebar.

Hint: The geeklog software that runs Groklaw has a bug that sometimes makes a
link broken when the comment is posted. Put spaces before and after the text
portion of the link to prevent the bug from triggering, as in

<a href="example.com"> The Article </a>

[ Reply to This | # ]

A Sun Position Paper on Software Patents, 2006 ~pj
Authored by: trevmar on Sunday, May 20 2012 @ 02:42 AM EDT
Great work, PJ !! It might be a bit late to find it now - but there's always the
little issue of 'spoliation of evidence'

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Sunday, May 20 2012 @ 02:55 AM EDT
Please keep them coming - And/or help out organizing the OraGoogle exhibits.

[ Reply to This | # ]

As a matter of law...
Authored by: Anonymous on Sunday, May 20 2012 @ 03:06 AM EDT
First of, IANAL and find such docs to be a 'liar liar' moment.

But, as a matter of law, how does the existence of this paper impact the case
and the strong statements that Oracle made? Can the lawyers and/or their clients
who should have known of this document be impeached in any way by the courts?

In particular how does this impact any appeal that may be brought forward by
Google?

[ Reply to This | # ]

A Sun Position Paper on Software Patents, 2006 ~pj
Authored by: belzecue on Sunday, May 20 2012 @ 03:08 AM EDT
Adding this, which shows a discussion paper from April 2008
linking to the same Internet Archive page.

-----

From: SHARING THE INTEROPERABILITY BALL ON THE
SOFTWARE PATENT PLAYGROUND by MICHAEL CHAPIN

https://www.bu.edu/law/central/jd/organizations/journals/sci
tech/documents/Chapin.pdf

"An interoperability exception was supported by some
software firms, most notably SUN Microsystems, who issued a
position paper on thetopic. Sun emphasized that patent
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 lower costs for consumers.” Sun
Microsystems [Home Page, Position Papers: Software Patents,
http://web.archive.org/web/20061218011518/http://www.sun.com
/aboutsun/policy/software_patents.html (last visited Mar.
24, 2008)]. However, Sun only supported a more narrow
exception that would permit uses that were “indispensable”
in order to create a product that could interoperate with
products covered under a patented technology."

[ Reply to This | # ]

Interoperability
Authored by: Anonymous on Sunday, May 20 2012 @ 03:16 AM EDT
I wonder if SUN's view of 'interoperability' at that time would have extended to
include user interfaces?

Consistent of UI would allow for a safer use of the many modern devices and
using patents (e.g. slide to unlock) would stifle teh availability of safer
devices?

My view is that software patents should not be granted but how obvious patents
like slide to unlock is just beyond my comprehension.

[ Reply to This | # ]

A System & Method...
Authored by: sproggit on Sunday, May 20 2012 @ 03:21 AM EDT
As I read this, I wasn't just struck with the realisation that Sun's 2006
position on patents was a country mile away from that currently espoused by
Oracle/Sun, but by the potential value of this documentation to Google, had we
been able to find it during discovery.

Thinking back, I notice that we [well, PJ] has done something similar in pretty
much all the other cases we've followed. That is, PJ's interest in the finer
points of the case remains piqued, and documents like this may come to light.

As I read the text of this Sun document, I could not help but ask myself how
powerful it would have been if it could have been shown to the jury in the
instant case.

So it occurs to me that there is scope for improvement [should we collectively
wish to strive for it] in the way that we, as the Groklaw community, observe and
participate in legal cases that impact things that we believe in. A
crowdsourcing-in-action in a legal context.

What do you think?

If this has potential, then perhaps we could ask PJ and Mark to come up with a
framework or pattern that we could apply to things like "a search for prior
art"... At a high level, we all know how such a search needs to be carried
out.

The trick is to look at the claims for an individual patent, and to determine
what other areas of endeavor may have that prior art that could be used in a
successful rebuttal. In other words, there are key ingredients to success,
including:-

1. The coordination of the process and distribution of the workload.
2. The identification and analysis of the relevant points from the key claims or
topics at issue.
3. The application of relevant technical skills to those relevant points, to
make a determination as to the best places to look for relevant evidence.
4. The actual searching and retrieval of the evidence.
5. The peer review process, collation, sorting and ultimate presentation of that
evidence back to the Court in question.

There are ways this could be done, either by the offer of support to the
relevant party or Counsel for a party, or by filings such as an amicus brief.



The reason for this idea jumping in my head this morning, however, is because
much as I found this article to be fascinating, I think it would have been
infinitely more valuable if we'd found it and submitted it during the discovery
phase of the trial.

So what do you think?

Is there scope and interest enough to take "The Groklaw Principle" to
the next level? Is there interest enough from this community to participate? Is
this something that we can make bigger and more useful than any one of us
combined? A resource that we can share back with the developers and coders that
give us so much enjoyable, valuable code?

Answers on a postcard, as the saying goes...

[ Reply to This | # ]

This is totally irrelevant
Authored by: Anonymous on Sunday, May 20 2012 @ 04:56 AM EDT
If Sun is urging politics for a particular playing ground and rule set for everyone, for very good reasons, that does not mean that if the playing ground is different, they should not be allowed to adapt. If they intended setting an example in voluntary compliment, they would not have needed to engage politics at all.

The court is not there for setting the rules. It is for making sure the existing rules are heeded.

If they say "it is harming business that I am forced to do this and that", does that mean that they should be precluded from doing this and that, at an even greater cost to their business?

I can see nothing wrong with asking for new rules while trying to make the most from the old ones.

[ Reply to This | # ]

A Sun Position Paper on Software Patents, 2006 ~pj
Authored by: Anonymous on Sunday, May 20 2012 @ 06:05 AM EDT
Yet again, pj, you're being one sided and dishonest. First of all,
companies' "official positions" usually represent their interests at
the time, and interests change. No one seriously thinks that companies
would rather adhere by some deeply held beliefs over their financial
interests. Google said "don't do evil" and then breached privacy and
worked with China to censor search results. I don't think anyone would
hold that against them in a court of law.

But specifically in this case, this has absolutely no relevance other
than from a PR perspective which you're apparently buying into (and is
probably the reason the page has been removed from Oracle's website).
Oracle's patents that are at the heart of this part of the trial
absolutely do not prevent anyone from writing software that is
interoperable with any Oracle software. A compatible implementation of
Java doesn't fall under the category of interoperability, and even if
it did, these patents do not prevent a compatible implementation of
Java. Please remember that Google has chosen not to implement Java at
all, but to provide a translation mechanism from compiled Java
bytecode to Dalvik bytecode, and this technical decision has made it
difficult not to allegedly infringe Oracle patents. Oracle simply
claims that Google's particular implementation infringes on their
patents. Your amazing discovery is completely irrelevant.

Your extremely biased position in the matters of this trial hinders
your ability to provide your readers with thoughtful legal analysis.

(I do not in the present and have never in the past worked for either
Google or Sun/Oracle)

[ Reply to This | # ]

A Sun Position Paper on Software Patents, 2006 ~pj
Authored by: Anonymous on Sunday, May 20 2012 @ 09:24 AM EDT
This is why it will never happen cause no one in the usa
cares about a consumer
they are not part of an equation the short term boost to
profits can only go so long and we are now entering the
phase of the next type a ceo the damage control mode ceo....

it is gonna take the usa a decade to get going and by then
the rest of the world will have said cya and i just have to
say keep trying to get infinite copyrights now that i saw
what people want its economic terrorism by americans all ip
is.

[ Reply to This | # ]

Spoliation of evidence
Authored by: IMANAL_TOO on Sunday, May 20 2012 @ 09:43 AM EDT
The fact that one can find old embarrassments on the web but
not on their servers may be an indication that some have
actively removed some content from the public view.

Has it ever happened that a Judge ordered a "diff" against
archive.org to see if there was an indication spoliation of
evidence?




---
______
IMANAL


.

[ Reply to This | # ]

At the End of the Day
Authored by: Anonymous on Sunday, May 20 2012 @ 01:50 PM EDT

Sun got disrupted and lost. Dot-coms got corrected into the ground in 2000. Low cost servers, generally running Linux, eroded too much of Sun's server business and were the key to the success of post-dot-com-bubble firms, e.g., Google and Facebook. No value judgement intended or should be inferred. It's the way of the world.

Oracle bought the assets and liabilities of Sun. It did not buy the philosophies and opinions. Indeed, we had the testimony from a witness from Oracle who said, when doing due diligence, he decided Sun couldn't figure out how to make money. Sun was an indirect partner of Oracle who was contemptuous of Sun's choices and worried that its decline would drag them down too. Oracle was early in on java and much of the middleware between clients front-end applications and the back-end Oracle database were in java. At the time Sun came onto the market, one of Oracle's motives was being sure that Sun wasn't acquired by IBM or Microsoft, the two biggest direct competitors to Oracle.

Oracle has to honor Sun's licenses, received and given, and contracts. They don't believe they are bound to Sun's business models and theories. Besides, Sun was a hardware and services company who wrote software to add value to the hardware. Oracle is a software company who has an os (actually, two, and now some hardware) to protect itself against another database vendor with an os, such as Microsoft, from taking their business.

Could a company running as per Schwartz's theories have done well? Sure. There are examples. Sun, however, was not starting at the ground floor and building up, they were coming down from the penthouse and that is a much more difficult proposition, just ask HTC, RIM, or Nokia. Oracle has done all right over the last 20 years, despite the success of mySql and recent Hadoop/MongoDB/CouchDB/BigTable/BigData/MapReduce non-relational database products. (These latter things may be disruptive to Oracle, however, at the moment, the the concepts are not being productized for general sale because a good massive database is the competitive advantage. Once that stops being as true, or an external party someone sees the opportunity, then Oracle, DB2, and SQLServer will face some tough times.) Oracle has continued by not sweating the cheap low-margin products, though it offers a couple. Improvement comes from no-cost external sources and Oracle can establish a relationship with a customer while it's still small and the cost of acquiring that customer is very small.

So even if there are merits to past Sun white papers regarding patents, that world isn't here yet, and if Sun couldn't convert the theory into revenues, Oracle is prejudiced against the idea. Oracle stands foursquare behind the concept, if we can't make money off of it, we don't care about it.

We really can't be surprised if Oracle doesn't endorse or even care about preserving what it considers Sun's wanderings in its final days.

[ Reply to This | # ]

discovery and evidence spoliation
Authored by: hAckz0r on Sunday, May 20 2012 @ 01:51 PM EDT
I have to wonder if the Sun website was named in the discovery phase, and if so why did Oricle not produce these as court documents? Not producing relivant documents which have been removed from the named site is the same to me (IANAL) as evidence spoliation.

---
DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | # ]

HTML5 should use vp8/ogg over mp4.
Authored by: Anonymous on Sunday, May 20 2012 @ 07:53 PM EDT
MP4 users are vulnerable to this type of change in stance. Google have put
effort into ensuring vp8 and checking ogg video is immune to any future cost
hikes/monetisation with legal statements for vp8.

Apart from a transitionary period whilst acceleration chips using vp8 become
mainstream, mp4 should be dropped. Apples veto on ogg in the html5 standard may
show their reluctance unfortunately.

With more than 60% of even desktop users browsers preferring open formats,
Apple's preference should be sidelined.

[ Reply to This | # ]

Does this position paper really change anything?
Authored by: Anonymous on Sunday, May 20 2012 @ 08:24 PM EDT
The position paper says that they opposed software patents becoming a reality in
Europe, and requested an interoperability clause if it were to happen, but Sun
was already living in a world where software patents were legal in the USA, and
at the time that Sun published that paper, they were full participants in the US
software patent system, having filed for many many patents in the USA already,
including the patents in suit. So how relevant is this paper to the current law
suit?

[ Reply to This | # ]

Why Sun took this position in 2006
Authored by: Anonymous on Sunday, May 20 2012 @ 10:58 PM EDT
I think the core reason Sun took this position that patents should not be used
to stop interoperability was because large portions of there own business
depended on this understanding. How could they develop an operating system like
Solaris without interoperability with others software. They didn't want others
holding patents over all the code they wrote themselves.

They also wanted the Java ecosystem to be open and interoperable as well of
course.

They may have other altruistic motives as well but also doing things that
further your own companies interests is easier for your Board of Directors to
swallow.

Now Oracle has in theory just as much to lose from their use of others patent
and copyrights that sun had. However Oracle may have a view that they are
simply too big and powerful for anyone to Sue. Especially now they have all of
there own patents and now Sun's IP/patents as well. Also a lot of their
software that can be attacked is based on Open source projects and no one can
attack them without attacking the original projects first so I don't see them
worried about this.

Michael

[ Reply to This | # ]

Oracle's position on Software Patents (at least once it understood)
Authored by: Anonymous on Monday, May 21 2012 @ 09:39 AM EDT
Perhaps already known, if so I apologize.... Oracle' s Patent policy (http://www.ibiblio.org/patents/txt/020294.txt) I particularly enjoyed: Even if Oracle had developed a certain invention first and could produce the appropriate prior art to prove its case, thousands of dollars in attorneys fees and other expenses would be spent in defense of its rightfully-owned technology.

[ Reply to This | # ]

A Sun Position Paper on Software Patents, 2006 ~pj
Authored by: Anonymous on Monday, May 21 2012 @ 11:31 AM EDT
It is interesting, but how does it relate to the case.

First, is the evidence closed and would this merit granting
a motion to reopen? How does it affect or impact jury
decision making, as already done? Has any right of Google to
introduce this into evidence effectively been waived? If
there is a retrial because the jury could not resolve
whether there was copyright fair use, would this then
matter?

Is it even relevant? A company can alter its policy
positions at will. It is free to do that. This item is not
granting any license or rights. Not with regard to any
specific property. Sun policy under McNealy and under
Ellison can be expected to be different.

The question is: Did Sun in posting this on the web
compromise any right of ownership or right of enforcement?

If the evidence were that Google detrimentally relied on
this representation in some material way, then there may be
a waiver or estoppel argument to be made against Sun/Oracle.

But the evidence seems to be Google's people were basically
unaware of this and hence could not have relied upon it. It
seems irrelevant unless it was mentioned or offered in some
Google offer of evidence that was denied, or somehow cited
between lawyers in reaching agreement on what would be
uncontested trial exhibits.

It seems already largely established that Sun attitudes and
"policy" at top levels have changed. Oracle acquired Sun,
and that does not mean it is constrained to think as
predecessors thought. The norm in mergers and acquisition is
that the dominant firm's "culture" becomes the culture of
the new aggregate. Paying the cost to be the boss.

Or am I wrong?

I fail to see relevance

[ Reply to This | # ]

Tweets from the courtroom
Authored by: Anonymous on Monday, May 21 2012 @ 12:27 PM EDT
Not that anyone will find this thread at the bottom...

[ Reply to This | # ]
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