‘Patently Absurd’ Lawsuits Proliferate Among Web Firms

September 1, 2010 Off By Hoofer
Zerto Gartner Report
Grazed from Internet Evolution.  Author: Sean Gallagher.

Between Oracle Corp. (Nasdaq: ORCL)’s patent suit against Google (Nasdaq: GOOG) and Paul Allen’s lawsuit against everyone, it feels as if we’ve just bounced back to 2003.

Seven years ago, Eolas Technologies won a patent lawsuit against Microsoft Corp. (Nasdaq: MSFT) for infringing on Eolas’s browser plug-in patent with ActiveX controls; and SCO was still in the midst of its attempt to squeeze every dime it could out of anyone using an open-source operating system called Linux.

And somehow, here we are with another pair of lawsuits involving browsers and an open-source operating system (Android).

This bit of déjà vu is brought to you by the still-broken and unlikely-to-be-fixed US patent system.

You’d think it would be hard to build open-source and open standards when a system exists for making intellectual property claims on ideas so fundamental to the way we create these things. Almost seven years ago to the day, I wrote about the Eolas judgment and the fear that the patent Eolas had purchased from the University of California describing a "distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document" would have widespread consequences for open standards and open-source. At the time, a lot of concern came from the Java community. As I wrote:

    In a post to the Apache Software Foundations e-mail list, Java guru Noel Bergman said that if Eolas’ patent covers as much as it seems to, "The idea of an Open Source browser is rendered meaningless." And Simon Phipps, Sun Microsystems chief technical evangelist, said in his Weblog, "When it becomes impossible to create a pool of open, shared standards for common use… our future will stall—corporate ownership is not an option."

That patent-driven apocalypse failed to materialize. SCO’s legal battles fizzled. Other patent-trolling lawsuits have come and gone, adding some friction to forward motion but not blocking it. And open-source and open standards now dominate the software infrastructures of the Internet — Linux, mySQL, Apache, and Java.

Ironically, it’s Java’s software patents that are now being used in a lawsuit by Oracle. Yes, Google’s Davlik is “Java compatible.” Davlik is a “clean room” version of the Java virtual machine. It uses the Java language, which Sun Microsystems had open-sourced prior to Oracle’s acquisition of the company. But apparently that open-sourcing isn’t deterring Oracle’s lawyers, since the company apparently bought Sun primarily for the intellectual property licensing potential of Java and the rest of Sun’s portfolio. (They certainly didn’t buy it for OpenSolaris.)

Oracle seems most likely to be playing the role of SCO here. And Paul Allen, a Microsoft co-founder, seems to be playing Eolas’s role in suing everyone Eolas didn’t. Allen’s claim, based on patents filed in the 1990s from his failed technology incubator, Interval Research Corp., are focused on methods for presenting search results and handling e-commerce.

Patent 6,263,507, which describes a “browser for use in navigating a body of information, with particular application to browsing information represented by audiovisual data,” is the heavy-hitter in the batch, as it seems to cover search engines on just about any site with audio and video (like Google).

The main difference between Eolas’s suit and Allen’s is that Interval actually owned the patents in the first place. But like Eolas, the technologies involved are at the root of how many Websites operate. And like Eolas’s claims, they have a better chance of being upheld, or at least being quickly settled and side-stepped with code changes.

The problem with these sorts of lawsuits is that they have become just part of doing business in the world of technology. They don’t hurt big companies, but they make it harder for smaller ones to innovate without fear of running headlong into a lawsuit that will burn through startup capital. And they’ll continue to be a drain on the technology industry’s ability to innovate until someone manages to ban software patents and put their protection under copyright where it belongs.

I wouldn’t hold my breath.