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Patent Fight Over Java Likely Means No Winners September 1, 2010

Posted by Peter Varhol in Software development, Software platforms, Software tools.

One of the commenters in my previous post noted that the lawsuit filed by Oracle against Google was a patent fight, not a license fight.  It apparently involves a clean room VM developed by Google that allegedly violates one or more of the existing patents Sun was originally awarded on Java.  It is possible to violate a patent, in effect copy a protected invention, even though the logic behind that invention is distributed via an open source license.

I’ve written a lot about software patents in the past.  I’ll say two things regarding them today.  First, software patents are never as cut and dried as they may appear at first glance, and predicting the outcome is virtually impossible.  I don’t know who’s right here, but being in the right isn’t necessarily indicative of who will win the suit.  A duplicate of the invention itself isn’t typically sufficient; the steps in creating the invention matter just as much.

Prior art may come into play in Google’s favor.  Java certainly wasn’t the first managed platform; Smalltalk and Lisp immediately come to mind as predating it.  There were also other clean room Java VMs.  A company called New Monics, started by Kelvin Nilsen, did fundamental and applied research into garbage collection, and came out with products supporting a hard real time Java for embedded use (New Monics was acquired by Aonix several years ago, and PERC still seems to be alive).

Second, if this were two ordinary software companies, I would say that the suit would be settled by a cross-licensing of each others’ patent portfolios.  Today, tech companies accumulate patents as a defense mechanism, in case of a lawsuit.  It is often possible for the defending company to coutersue, identifying technologies from the plantiff that may infringe on its patents.  This often ends in a settlement where little if any money changes hands, and both companies continue as they did before.

(Incidentally, since patent trolls don’t make products, this defense won’t work with them.)

However, I suspect that larger issues are at work here that are likely to preclude an amicable settlement.

Last, in Oracle’s favor is that in engineering practice, clean room design is difficult to prove.  Companies engaged in clean room design often require that engineers have no prior knowledge of the technology, so that they can plausably argue that any similar design approaches are an accident rather than intentional.  In the case of Java, I might doubt that it’s possible to hire such engineers who can still produce the VM.

The loser of this patent fight remains all of us.  However this may turn out, it will cause uncertainty as to just what we can do with Java, and how we can do it.  For the vast majority of companies building custom applications for internal use, it doesn’t matter directly.  But it’s likely that they’ll have to pay extra attention to the tools and frameworks they use, as it may not be clear what is patented, and by who.



1. saeed - September 1, 2010

what about Apache harmony , it also has a similar issue ? As I know the dalvik itself is based on Apache harmony .

personally hope that this conflict would be settled and java finds it’s primary place by jdk7.

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