That Kodak patent suit: Sun pays up.
“Sun Microsystems … agreed to pay Eastman Kodak $92 million to settle a suit over its popular Java programming technology. A bit of background: Late last week, after a three-week trial, the U.S. District Court of Rochester, N.Y., found that Sun infringed on three of Kodak’s object-oriented software patents when it created Java. (One of the patents covers the method by which one application asks for help from another application. Talk about overly broad). The penalty phase of the trial was to have begun yesterday, and in it Kodak, which ironically was an early supporter of Java, was expected to demand $1.06 billion in lump-sum royalties from Sun and, worse, ask the court to enjoin Sun from using Java pending the case’s appeal. Had the court granted Kodak’s request, the result would have been disastrous, for Sun and for the software industry that has for years made free use of Java. So I suppose it’s a good thing that Sun rolled over and paid — good for Sun’s bottom line anyway, less so for the software industry, whose continued advancement seems threatened every day by asinine patent infringement suits like Kodak’s.”
So… panic over? I doubt it. Maybe Kodak settled because the case wasn’t as strong as they maintained. Why else would they settle for $92 million when they could have struck for $1.06 billion? My initial relief has given way to foreboding. In effect, Sun has made things much worse by caving in rather than fighting. Here’s a gloomy assessment from ZDNet UK:
“If you’re a software developer, your world is about to become a colder place — thanks to Sun. If you use software, get ready to pay much more for much less — thanks to Sun. If you had hopes that free and open source software would provide competition for proprietary systems, forget them — thanks to Sun.
We owe this huge debt of thanks to that company because it has caved in to Kodak. Instead of fighting the patent claims that Kodak raised over Java, Sun has settled out of court. We don’t know the details — delightfully, such settlements often remain secret no matter what their public interest — but it undoubtedly includes a cross-licensing deal. In short, Sun has given Kodak millions of dollars to go away and the companies will have agreed not to sue each other in future over mutual use of their IP.
Although Sun has bravely said that this settlement is no admittance of guilt, it’s handed over the Danegeld. Kodak is already crowing that its patents have been validated in court. Armed with this, it is free to go after anyone — and those patents can be argued to cover just about every aspect of modern software practice. They may even cover processors. That’s just three patents out of the tens of thousands which are sprinkled around the industry. Which one will you infringe today?
Anyone who makes software is now at risk. Big companies will solve the problem cheaply by doing Sun-like cross-licensing deals — it’ll cost less and be far less risky. Shareholder value demands it. Microsoft knows this. It has been assiduous at setting these up with many companies over the last year or so, and it already has an agreement with Kodak. In no time, there’ll be a legal web over the industry, with everyone paying everyone else for the rights to use their respective IP. Nothing will escape: someone will already have patented 1+1=2, and can you afford to fight it?
That’s fine if you’re a big company and can afford to join the club. What if you’re not? Then you either pay up your licence fees or you don’t write software. Be sure that the big boys will set up a helpful organisation to issue cross-patent licences, so you only have to go to one place with your cheque, and be sure that the licence you get will be quite clear about what you can and cannot do with your software. After all, the rights of the intellectual property holders have to be maintained. That’s the only way to encourage innovation — to give total control of invention to large companies.”