Thursday, August 19, 2010

Sun's "goofiest patent" contest?

An article in The Register begins with the text:

Sun engineers once ran an unofficial competition to see who could get the "goofiest" invention past the US patent office, according to former Sun man and Java founder James Gosling.

The second paragraph talks about a patent binge at Sun, probably not unlike the patent binge at Microsoft:

In suing Google over its use of Java on Android, Oracle is waving seven Sun patents, and one of them carries Gosling's name. In a blog post sparked by the suit, Gosling says Sun didn't pay patents much heed until the company was successfully sued by IBM for infringing on its so-called RISC patent. Then Sun went on a "patent binge", and yes, this included some less-than-serious filings.

The third paragraph had a "everybody else is doing it" theme:

"Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure," he writes. "There was even an unofficial competition to see who could get the goofiest patent through the system."

Of course, paragraph 2 showed that IBM wasn't doing patents as a defensive measure. Further, getting a derivative improvement patent is not a defense against a broader controlling patent. Gosling seems not to get it.

A later paragraph is more interesting:

"The collection of patents specified by the suit seems pretty laughable to me. If I were Google, I wouldn't be particularly worried about showing prior art for the patents in question or demonstrating how Android/Dalvik don't actually violate them," he writes. "It feels very much like a bunch of Sun engineers got together in a room with a bunch of lawyers and started digging for patents that Google might have violated without actually knowing much about Android or Dalvik to begin with."

Hmmm, the suggestion is there was no evidence for infringement [ without actually knowing much about Android or Dalvik to begin with. ] and Google can put forward both an invalidity and a noninfringement defense?

There's a long post at headius. If you are looking for an analysis of claim construction, you won't find it there.

My Thoughts on Oracle v Google

Meanwhile, concerning patent lawyers and innovation, from the post An Innovation Expert Sticks Up for IP Lawyers!:

Keven McFarthing of Innovation Fixer wrote this post in which he asks open innovation professionals to not just look at their IP lawyer as an “extraneous irritant,” but instead as a member of the team. Kevin also provides these recommendations:

Ideally, make the lawyer a member of the formal team. If that can’t happen, treat them as if they are on the team.
Don’t leave the final decision up to the lawyer. After all, legal risk is only one part of a project, there are risks associated with R&D, manufacturing etc. You should have a senior decision maker who decides what will happen based on ALL the inputs.
When it all works out, say thank you. If it doesn’t work out, treat it as a collective setback for the team, not the individual who put their neck on the line to try to help the innovation succeed.
I agree with all of these, but I would add to the first one that innovation folks need to recognize that their colleagues in the law department–in particularly legal management–may not be accepting of lawyers being closely integrated into a business team due to a perception that they “are getting too close to the business.” Innovation managers should be on the look out for signs that their lawyer might be effectively be getting “beaten up” for going out on a limb for the team. Moreover, innovation professionals need to understand that by asking their IP lawyers to take risk for the sake of the business, the person who is going to suffer most if that risk plays out is the IP lawyer. That is, if the innovation team embraces IP litigation risk and legal cost or litigation ensues, it is the IP lawyer who will experience the most “blowback.”


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