Good Artists Copy, Great Artists Steal

I feel for Google – Steve Jobs threatened to sue me, too.

In 2003, after I unveiled a prototype Linux desktop called Project Looking Glass*, Steve called my office to let me know the graphical effects were “stepping all over Apple’s IP.” (IP = Intellectual Property = patents, trademarks and copyrights.) If we moved forward to commercialize it, “I’ll just sue you.”

My response was simple. “Steve, I was just watching your last presentation, and Keynote looks identical to Concurrence – do you own that IP?” Concurrence was a presentation product built by Lighthouse Design, a company I’d help to found and which Sun acquired in 1996. Lighthouse built applications for NeXTSTEP, the Unix based operating system whose core would become the foundation for all Mac products after Apple acquired NeXT in 1996. Steve had used Concurrence for years, and as Apple built their own presentation tool, it was obvious where they’d found inspiration. “And last I checked, MacOS is now built on Unix. I think Sun has a few OS patents, too.” Steve was silent.

And that was the last I heard on the topic. Although we ended up abandoning Looking Glass, Steve’s threat didn’t figure into our decision (the last thing enterprises wanted was a new desktop – in hindsight, exactly the wrong audience to poll (we should’ve been asking developers, not CIO’s)).

Bluster and Threat (Often Credible)

As in life, bluster and threat are commonplace in business – especially the technology business. So that interaction was good preparation for a later meeting with Bill Gates and Steve Ballmer. They’d flown in over a weekend to meet with Scott McNealy, Sun’s then CEO – who asked me and Greg Papadopoulos (Sun’s CTO) to accompany him. As we sat down in our Menlo Park conference room, Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” OpenOffice is a free office productivity suite found on tens of millions of desktops worldwide. It’s a tremendous brand ambassador for its owner – it also limits the appeal of Microsoft Office to businesses and those forced to pirate it. Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.

Royalty bearing free software? Jumbo shrimp. (Oxymoron.)

But fearing this was on the agenda, we were prepared for the meeting. Microsoft is no stranger to imitating successful products, then leveraging their distribution power to eliminate a competitive threat – from tablet computing to search engines, their inspiration is often obvious (I’m trying to like Bing, I really am). So when they created their web application platform, .NET, it was obvious their designers had been staring at Java – which was exactly my retort. “We’ve looked at .NET, and you’re trampling all over a huge number of Java patents. So what will you pay us for every copy of Windows?” Bill explained the software business was all about building variable revenue streams from a fixed engineering cost base, so royalties didn’t fit with their model… which is to say, it was a short meeting.

I understand the value of patents – offensively and, more importantly, for defensive purposes. Sun had a treasure trove of some of the internet’s most valuable patents – ranging from search to microelectronics – so no one in the technology industry could come after us without fearing an expensive counter assault. And there’s no defense like an obvious offense.

But for a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace. See Nokia’s suit against Apple for a parallel example of frivolous litigation – it hasn’t slowed iPhone momentum (I’d argue it accelerated it). So I wonder who will be first to claim Apple’s iPad is stepping on their IP… perhaps those that own the carcass of the tablet computing pioneer Go Corp.? Except that would be AT&T. Hm.

Having watched this movie play out many times, suing a competitor typically makes them more relevant, not less. Developers I know aren’t getting less interested in Google’s Android platform, they’re getting more interested – Apple’s actions are enhancing that interest.

Sun was sued numerous times – most big companies are sued almost constantly by entities or actors whose sole focus is suing others. Groups with no business focus other than litigating patent suits are affectionately known as trolls – pure litigation entities. (For good humor, read this, an application to patent the act of trolling. If granted, it would give the patent holder a reciprocal claim against a patent troll.)

The most egregious of such suits was filed against Sun by Kodak (yes, the film photography people).

Egregious, because Kodak had acquired a patent from a defunct computer maker (Wang) for the exclusive purpose of suing Sun over an esoteric technology, Java Remote Method Invocation (“Java RMI” – not exactly the first thing that comes to mind when you hear “Kodak”). Given how immature Kodak’s technology business was (they were just starting out in the digital world), we had little we could respond with – I suppose we could’ve hunted for a Wang-like opportunity to hit at their core, but Kodak was a customer, which certainly complicated things, and the time and expense involved would’ve been prohibitive.

Their case was eventually heard before a jury in Rochester, New York, famous for being home to… the Eastman Kodak company. Lo and behold, the local jury decided Sun should pay Kodak more than a hundred million dollars. So here’s something I could never say as Sun’s CEO.

I prefer SmugMug.

__________________________

*To see a Looking Glass demo, click here - it starts at the ~2:00 minute mark.

249 Comments

Filed under General

249 responses to “Good Artists Copy, Great Artists Steal

  1. Sam

    Good article. And that’s a funny pic :)

  2. A good reason to be against software patents… instead of moving research forward this simply slowing down development by spending lot of time and money doing this kind of battles…

    • LGB

      Yeah, I agree. And patents within information technology sector are totally meaningless anyway especially their long term aspect: years in IT means dozens of years in other areas very often, IT develops must more quickly than other areas, so it’s a mistake to have the same policy for software patents. Also the main problem: a patent of building a rocket (for example) can be quite right: not too much people will build usable rockets to carry people into space, but for softwares: every programmer can create new softwares/solution. They often haven’t got business, and no money/time to take care on patents, but big companies are so happy to sue them after a while and they are even “clever” enough to wait until they become more used. A typical open source developer/vendor/whatever may not have the money/time to deal with threats at all …

    • Edward

      You should be against patents in general, and not solely on the basis of problems illustrated here, but for the full reasons based on the fallacies of attempting to claim ownership over something that isn’t functionally scarce.

    • The whole idea is that software companies need to support themselves and pay their people. Otherwise, there will be no innovation.

  3. Wonderful story, thanks Jonathan.

    I’m always amazed at all the insane sounding litigation, and what companies will actually attempt. How do these decisions get made? Are there no PR-aware people at the C-level meeting table? Nobody from Product Dev? I think too few people are crass enough to ask, “are you fucking crazy?” That’s a shame.

    SmugMug is great.

  4. That was a GREAT post! It’s just amazing to see how things happen behind the curtains!

    Thanks for the post!

  5. Nathan

    I figured as much Billy-boy, would try and push Sun/FOSS around.

  6. Thank you so much to show how patents are really used in most companies.
    Not to protect innovation or encourage it but really to provide a good defense or bully others!

    • mj

      How can you use patents to “protect innovation or encourage it” without using patents as a defense or bullying tool?

      Is there argument that patents are a good thing. I think so. Patents encourage innovators to keep innovating. For example, if Apple hadn’t brought out the iPhone and App Store, would we be seeing the plethora of choice as we see it now?

      Is there argument that patents are a bad thing? Yes. When they’re used to lock down something that isn’t innovative, something that is ‘patently obvious’. Whether it’s ‘one click’ or someone claiming to ‘own’ the digital representation of a bookcase in 2010.

      You have to take things on a case by case basis and as Jonathan says, be prepared to negotiate.

      • norbert

        “or example, if Apple hadn’t brought out the iPhone and App Store”

        In th 60s, 70s and most of the 80s, there was no such things as ‘software patents’. Everybody news that software were covered by Copyright, not patent (and that is still the case in most of the rest of the world)
        Yet Apple, and many other still came up with new and innovative product. Actually if software patents had existed in the early 80s, Apple probably could not have done Lisa and the Macintosh (Xerox would own patents on most of any existing GUI, from windows to mice to menu bar) , And Microsoft would not even exist at all.

        On top of that: ‘Apple Store’ ? really, you think that is patent worthy ? what to patent ? an ‘online store to sell app’ or a ‘way to enforce a monopoly on every software sale to a class of customer’ ?

      • Apple would have brought out the iPhone and the app store regardless of patents. Why? Because it’s a good solution for customers, so customers are willing to pay for it. It’s wasn’t the patents that encouraged apple to innovate.

        Now, suppose multitouch screens are the best solution for user friendly smartphones. Do you think you encourage innovation by forbidding other vendors to create multitouch smartphones?

        Innovation would be to improve upon multitouch, not trying to find alternatives. Patents prohibit evolutionary innovation on good ideas.

      • @norbert

        apple licensed xerox technology. it’s not stealing when you pay for it.

      • TK

        @mj: “How can you use patents to ‘protect innovation or encourage it’ without using patents as a defense or bullying tool?”

        Good grief! The question of the millennium. I don’t like software patents, straight out, but that question jumps to the crux of the problem. How does a person or company spend time and major money for R&D to get a patent and then protect it from vultures without looking like bullies? Of course, this precludes scummy patent trolls.

      • kikito

        Why do you use the phrases “Patents encourage innovators to keep innovating” and “For example, if Apple hadn’t brought out the iPhone and App Store, would we be seeing the plethora of choice as we see it now?” as if they were logically connected? They are not.

        Apple has innovated because they have detected a possible way to make *money*. That’s their motivation. Being able to use patents isn’t a motor for innovation. Money is.

  7. So patents are like having some nukes? The fear of mutual annihilation allows companies to develop products without the fear of being sued for 200 different patents? I had never though of it like that.

    I love your blog Jonathan. Please keep posting.

  8. Nino

    Very funny and interesting post.

    You obviously have my attention as Sun’s former CEO. These backroom stories are entertaining to geeks.

  9. Evan David

    This is a really great article. It’s awesome to hear from someone who has been involved with these issues at the highest possible level in business. Keep it up.

  10. Ray

    Nice insider story. Good negotiations skills at play.

    Thanks for sharing. Funny photo there.

  11. With the lawsuit Apple acknowledged they are worried about Android. For real innovation to happen (and not eye candy innovation) Apple hype need to die down.

    • Dan

      or maybe they have aknowledged that Android is in fact violating or stealing IPs from Apple? To argue that Apple -like them or not- hasn’t been hugely innovative is naive; there is a reason for ‘Apple Hype’ as you put it. Better than Google has been I’d argue.

      • F

        “To argue that Apple -like them or not- hasn’t been hugely innovative is naive”

        You’re the one who is being naive with your attempt to paint all innovation with the same brush.

        Apple can design a nice power connector but that has NOTHING to do with the GUI conventions that have been passed down over time. Even they lifted from Xerox PARC.

        If you think that the GUI design in phones is SO TERRIBLY INNOVATIVE that it deserves patent protection, you are quite mistaken.

    • Alex Borges

      Well… good marketing is what it is, and nothing more.

      If you want “real” innovation, then google should create the hype it needs to deliver the product to market and break the hype barrier. Thats the way capitalism works (and it does work).

  12. Eugene

    Jonathan, thank you for sharing this.

  13. JP

    Jon, thanks for being candid and sharing your insider story. Patents are something that scares us little guys; but we must remember that they exist, and perhaps are a necessary evil.

    Thanks again.

  14. It’s easy to cite the downsides of patents, but the promise of patents is to create a marketplace for ideas; where specialists in innovation can exist separately from those that excel in sales or execution, in exactly the same way as we see product design, marketing, PR, sales, distribution and support all outsourced to specialist companies that are best-in-breed.

    I believe we should have the patent discussion not in terms of worst-case scenarios, but in terms of what we would like patents to be. Today’s situation – where a world-class innovator (Sun) must be swallowed up by a world-class sales organization (Oracle) – may be the reality, but as long as we continue to discuss patents in terms of trolling, threats and lawsuits – using the vocabulary of those that infringe, rather than those that invent – that’s not going to change.

    • pepe

      The problems will not go away by looking at the bright side. Small inventors have much more serious problems here since they cannot afford to effectively defend themselves against inconcrete claims.

      Example? Password-authenticated Key Exchange has some major advantages over the standard password logins we know. It makes online fraud much harder and could have a substantial impact on phishing. There are prototype implementations for Mozilla and it could be used to make password-based WiFi or VPN much more secure. Yet, because of patents, they found little use. There was even a likely-to-be-free variation called SRP(srp.stanford.edu) but some company simply announced “we might have a patent on that” and suddenly nobody dares to support this protocol, though many patches for major use-cases existed.

      The German Ministry for Information Security recently went as far as to develop a completely new protocol for use in the new German electronic ID cards. It does – to the best of everyones knowledge – not infringe any IP so now we can finally use this technology. We can also use it on the future passport to prevent some major attack scenarios.

      So what was the big gain for the inventor of this stuff and for society? Yes, there are some products where that IP is used. Nobody ever heard of them, same as many security people never even heard about the technology.

      Those things happen all over the place, they impede the free market and have totally perverted the original purpose of patents, which is to protect someone with *little* resources to make some gain from his idea before it is copied all over the place.

      • Numayos

        Sorry, “the original purpose of patents”, at least in Europe, is to avoid ‘tradind secrets’ get lost when their owners die. A patent is a limited-time monopoly grant over a process (not an idea) under the condition that the autor explains the trick to the society. In theory, you can not patent a process wich is already known (ie. if there is ‘prior knoledge’). You can never patent an idea, not also for the sole fact that you ‘arrived first’.
        Despite this, I agree with you on the rest.

    • Craig

      > “a marketplace for ideas”

      (voiceover)Awww, what a pretty idea.

      (deep voice here) It’d be a shame if that pretty idea got into a legal “accident”.(end voiceover)

      And who decides who is allowed to sell what in this “marketplace”? And who decides which products are worth how much? Marketplaces have producers and consumers, and competition for similar goods. Marketplaces are NOT served by monopolies and agencies of various types making threats.

      Lawyers are used for making threats, or responding to threats. Courts are full of elected judges and juries full of “average citizens” trying to decide of “advanced technology A” is remotely similar to “advanced technology B”.

      Are lawyers cheap? Is being involved in litigation in said courts renowned for it’s speed, justice, and fairness? For producing accurate judgements? Or for taking 30 years to figure out that the last N decisions were all contradictory and full of BS because manager-C had lots of money for lawyers and no scruples?

      You simply *must* be one of the lawyers, or a “manager” who thinks that their “brilliant unique ideas” should receive recognition as “never being thought of before” by any of the other 1,000,000 managers and 5,000,000 software engineers in the world, and therefore receiving some magic money and magic protection from having to compete in the marketplace of actually writing and selling software to consumers.

      Your pretty little marketplace only works if the actual ideas there are OBVIOUSLY unique and deserving of protection. When 20 engineers in 20 rooms all come up with the same 4 designs — bzzt, fails the obvious test. You figure out how to change things so that 20 companies don’t sue everyone else under the sun for 20 OBVIOUS ideas because they’ve got slush funds of managers with too much money for lawyers, then I’ll start listening to you.

    • see_juheesus

      Are you serious? One man’s racketeering is another man’s marketplace.

      This is more anecdotal evidence in a long line of examples of why software patents and process patents deserve to die. Swiftly.

      More evidence to bolster the follow-on idea that innovation is materially constrained by @sshats like Jobs and Gates.

      No wonder this country’s economy is a shambles.

    • Paul Prescod

      Justin Santa Barbara: “It’s easy to cite the downsides of patents, but the promise of patents is to create a marketplace for ideas; ”

      Thomas Jefferson: “”If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”

  15. Yes, this is the sort of story it’s interesting to hear :-) The book will write itself at this rate …

  16. This is a really depressing description of patents, though — as Jonathan explains, large companies have enough patents to cover almost everything, which means that small startups will never be able to compete; their brand new shiny patent will simply garner a response of “Oh, you have that patent? Well, we have *these* patents..”. That’s not a system that anyone should be proud to be part of, and it does nothing to encourage meaningful competition.

    Software patents are a disease. :-(

    • Steve

      Sloppy generalisations are a disease.

      Did you even read the article? Or did you just see the word “patent” and a kind of explosion went off in your brain.

      • Noah Fect

        Did you have a point to make?

        How in the world did we see all the innovation in the 1960s, 1970s, and 1980s that took place in the software field without patents?

        Software patents are a racket, nothing more and nothing less. You cannot point to a single innovation that would not have existed had it not been patentable.

  17. addicted

    Good points.

    However, while developers are more interested, I am pretty sure hardware makers are probably not. While this won’t benefit Apple, it will definitely benefit MSFT, with Windows 7.

    I am not a conspiracy theorist, but I have always believed that Apple and MSFT have held a much closer relationship behind closed doors than their public actions seem to indicate. I think Apple fears Google far more than it ever would MSFT, which is why its doing this, now.

    • Kent

      “I think Apple fears Google far more than it ever would MSFT, which is why its doing this, now.”

      You are right, MSFT can’t kill Apple but Google with their open systems could cause great damage to Apple.

      • littlenoodles

        Actually Microsoft *can* kill Apple (pull the plug on Office, and watch what happens). But Apple can’t kill Microsoft, so MS doesn’t need to get drastic (and possibly wake the again sleeping DOJ).

        Google is another story. They’re supporting open source code, and open source code *can* kill Microsoft. Not right away, but frankly 90% of MS Office users would be nicely served by OpenOffice. Mocrosoft knows this even if their customers don’t (yet).

        Google could hurt Apple some – to the extent that the iPad and iPhone are the future of Apple’s revenue stream. Apple can always compete on cost, though, so there’s no reason they *have* to be harmed by Google putting out phones and tablets.

        The silly thing is that Apple and Microsoft probably have deals to not sue one another. So Apple’s HTC/Google suit will probably benefit Microsoft phones, which will be able to multi-touch to their hearts’ contents, ultimately to the further detriment of Apple itself. Maybe Apple thinks MS can’t pull off a successful iPhone clone as well as Google has.

  18. Thank you twice.

    Once for expressing feelings and views that I whole heartedly share but could never have as eloquently conveyed. Well done.

    Twice for making me smile, and laugh more than once, at the tech industry’s expense.

  19. PXLated

    Bad headline Jonathan – Overused lately – If I remember correctly, Picasso was referring to good artists making a duplicate, great artists using it for inspiration. Patent lawsuits are usually about duplication.

  20. charlie

    Very instructive.
    I loved lookinglass when i first saw it. blew me away.
    But it came out in Jan and had this really neat 3d dock.
    Then later another dock appeared in a different OS that looked like a twin. I have always wondered about that chicken and egg story…

  21. “Developers I know aren’t getting less interested in Google’s Android platform, they’re getting more interested – Apple’s actions are enhancing that interest.”

    Assuming this is true (and you know vastly more about it than I), why would Apple do such a thing? Don’t they know what you know? Is there some other impact of the lawsuit that outweighs this?

    Any ideas?

    • Wilson

      Well, the easy answer is if Apple wins, that’s a big bit of either stifling of Google or income on licensing the patent to Google. When a patent lawsuit is between two big businesses, it isn’t just to harass (well, usually), it’s with some return envisioned. It could be that Apple hopes Google will settle out of court, could be that there’s some situation orthogonal to this not in the public eye that Apple hopes to cajole Google into doing something with, or simply could be that Apple really believes it can win. Given many patent decisions (including where the trolls win), why not?

      I assume that Apple is gambling any negative publicity and any turn of a “few” developers towards Android will be outweighed by what they intend to gain.

  22. Interesting article. Apple is at it again with their suit against HTC. Even more disturbing is Apple’s play at cornering the web publishing market by leveraging its patents in the new HTML5 spec. We’ve written an article about it here:

    http://blog.nothinggrinder.com/id-rather-be-a-woz

    Apple’s proprietary code has some how made it into the spec and it seems the only ones fighting against this injustice is Mozilla and Adobe.

    Mozilla is pushing for an open source video codec as opposed to Apple’s H.264 and Adobe of course is helping write the spec and using that as leverage to promote Flash as a standard.

    Power moves like this are expected but if Apple has its way, they’ll put a standard on design, pushing developers to focus on delivery of services vs. the invention of new technologies.

  23. Alex

    Loved the post, thank you for your honesty and sharing.

    Quick broken link fix: your footer link to YouTube is slightly malformed.

  24. Inspiring.

    Thanks for the insight into Apple, Microsoft and all the fun you must have had!

  25. Pingback: Michael Tsai - Blog - Software Patents

  26. Fascinating read. Thanks.

  27. Pingback: Jonathan Schwartz chimes in on the Apple vs Android Patent Fight | Tech Talk Lounge

  28. Chess

    I don’t get the smugmug reference.

    • mcd

      SmugMug runs a photo archiving website. Kodak also entered that “market” with their Ofoto purchase and re-branding as the Kodak Gallery.

      By the way: SmugMug stores all the photos in the Amazon S3 service and only manages a few database servers to make the application work. They also are early adopters of the Sun 7210 Storage systems so Jonathan would know them as a useable reference for these new products. One of the product growth areas in his reign at Sun.

  29. Love the title, how appropriate: both Apple and Microsoft ‘borrow’ concepts from Xerox, and later sue each other and everyone else under the sun — who thought back then patents would be so important… as you aptly pointed out great artists steal ;-)

    It’s just a shame that anyone is allowed to patent for the sake of litigation, there should be some substance behind actually making an effort to produce something.

    Sounds like it would have been interesting to be in the room when you talked to Bill about .NET/JAVA, I think the expression/frustration would have been something a lot of people would have liked to see. Impressive that you out-negotiated the master negotiator.

    • Simon

      The title is good – but you do realize it was actually the much maligned Steve Jobs who coined that; and noted that as it came to Apple realizing the potential which Xerox did not harvest at all; There is a big difference between Apple and Microsoft.

      I disagree – or maybe don’t understand your point about patents for the sake of litigation. Both Microsoft and Apple (and Sun) have, yes, innovated, created and the right to protect assets that they very much should be able to protect in court. If you are suggesting neither has produced to the extend that warrants that, I wholeheartedly disagree.
      Maybe taking a slice out of Apple’s and Microsoft’s strategy would have done Sun some good.

      • Raffael Cavallaro

        “Good artists copy, great artists steal” is a quote from the artist Pablo Picasso, who died in 1973, when Steve Jobs was 18, and hadn’t yet founded Apple Computer. The quote itself was first uttered by Picasso before Jobs was even born.

        Steve Jobs is famous for saying “Great Artists ship,” which means that one cannot claim to be a great artist unless one has a shipping product – it was an indictment of vaporware and schedule slip, and took for granted that the audience had heard the famous Picasso quote. Maybe you have these two quotes confused.

      • DC

        Actually, the famous Steve Jobs quote is, “Real artists ship”.

        And here’s some context, courtesy of Andy Hertzfeld, one of the original Mac system-software developers: http://www.folklore.org/StoryView.py?story=Pirate_Flag.txt

  30. The lesson is a big fish always try to eat small one. He does not like the smaller one being bigger. Good luck for you

  31. Alex

    Interesting post, and an interesting choice of image above the “Bluster and Threat” caption:

    Never ever ever ever (Never ever (Never ever ever (Never park here))) =
    Never ever ever ever (Never ever (Always park here)) =
    Never ever ever ever (Never park here) =
    Always park here

    Hopefully, no one got towed.

  32. Thank you Jonathan for giving us real examples of how patents are used in the U.S.

    I feel lucky that in Europe, ideas cannot be patented.

    Your blog is very interesting, but it doesn’t explain why Looking Glass is dead.

    I’m waiting for the next episode…

    • Callum

      Looking Glass is dead because pseudo-3D interfaces just aren’t useful on a 2D desktop. Far brighter people than Sun’s designers have tried, and failed, to make them work for almost 40 years. They just don’t.

      • Matthew

        I’d agree wholeheartedly.
        We have input devices designed for input into 2D space. When faced with 3D space, unless we have some non-intrusive alternative to stereo glasses and data gloves, it just won’t fly with the average user.

  33. Jimmy

    So the gist is that patents are worthless??? So how are companies suppose to protect their IP?

    • Callum

      They aren’t. Everyone gets to see and build on everybody else’s great ideas. The people and companies that innovate still win, because they’ll still always be one step ahead of everyone else. And the companies that add nothing to the existing idea pool still lose, or at least have to make their money doing something other than innovating– such as adding great customer service.

      In other words, nothing changes, except that the whole ludicrous software patent system disappears :)

    • There is no such thing as intellectual property, what is in the mind cannot be property. Read Kinsella on patents. Companies are supposed to protect their customer base by innovation and marketing. Win by serving customers, not by 3rd party threat of violence (IP law).

    • I believe by using their IP and patenting everything they build defensively

    • GF

      Jimmy,
      did you know that software is the only thing that can be both patented and copyrighted ?

      Copyright should be enough. Owning an implementation of an idea is fine, owning the idea itself should not be possible.

  34. Henriok

    Didn’t Sun end up suing Microsoft for some Java dispute ending up in a settlement earning Sun $2 billion in 2005. This was before Jonathan’s time as CEO but afaik, the 2 billion sat pretty well in Sun’s pockets keeping the sinking ship afloat a couple of more years. As I saw it, it was almost the same kind of charity from Microsoft’s part as they showed Apple in 1997 ending a patent dispute and shelling out $150 million in the process.

    I don’t see anything wrong with software patents per se, but they are valid for too long and if a product is taken off the market (like Lighthouse’s products) they should be let lose.. and free to anyone who wan’t to exploit them. It was the purpose, to let the inventor get a head start at the same time as he was forced to let everyone in on the secrets.

    • Cary

      No, the dispute between Sun and Microsoft on Java is not about IP, but on license terms. Sun, who wants Java to be cross-platform, clearly describes in their license that a basic API set must be implemented in any Java implementation. Microsoft hasn’t obeyed this, its Java can only run on Windows. Sun believes this is another example of MS’s notorious “Embrace, Extend and Extinguish” policy and sues MS. Finally MS gives up Java, so, Java is still cross-platform today.

  35. oomu

    >So the gist is that patents are worthless??? So how are
    >companies suppose to protect their IP?

    by copyright and by selling first and fast always new and innovative and useful products.

    The thing is , Apple is trying to protect itself, a thing they were unready to do with mac and unable to do with Quicktime.

    Now, they act with full force to protect iphone/ipad.

    But I wonder, how many times great computing inventions was really protected ?

    some companies (guess who) just clone _everything_ , loose a huge battle in justice, pay whatever you want and DO AGAIN !

    -
    only one thing can stop : to forbid totally to sell a competitive product. and mostly never judge and laws ask that.

  36. Interesting article. Good to see you back in the blogosphere. Hope you are getting some much deserved rest.
    Keep it up Jonathan. You have many fans out there.
    -VMan

  37. As an aside, I’ve worked as an oem to kodak; I worked with a ton of imagining companies as an oem, and all I can say is I prefer smugmug too. And xerox.

    As for the rest, thank you. I think you really hit the nail on the head with why patents are important – and abused.

  38. Tim

    Old tech company carcasses never die
    Actually, as a former GO corporation employee, I happen to know that early GO CEO Jerry Kaplan purchased various rights from AT&T/Lucent in 2005, in order to sue Microsoft. http://docs.google.com/viewer?a=v&q=cache:6N6wgpSo2lwJ:caselaw.lp.findlaw.com/data2/circs/4th/062278p.pdf+go+corporation+jerry+kaplan+lawsuit

    I don’t know if he got any patent rights as well — if he did, I wouldn’t be suprised at all to see him sue Apple.

    Although Bill Campbell, later GO CEO and former Apple sales head, might dissuade him :-)

    I’m enjoying your blog, keep it up.

    Thanks,
    Tim

  39. James Butler

    Patents are for inventions … cameras, pens, carburetors, etc.

    Copyright is for the written word … books, songs, software, etc.

    You cannot copyright an idea. That is why patents are being abused by those who wish to limit the use of what they incorrectly consider to be “their” ideas, instead of correctly applying patents to those things that can be built from the idea.

    Nobody can patent the idea of an automobile, but Hooker can patent its exhaust headers and K&N can patent their air filters. Likewise, Advance can patent their exhaust headers and Fram can patent their air filters. The devices each have their own unique take on the basic idea that makes them patentable. The idea itself is … just an idea.

    Software “patents” should ALL be converted to copyrights, “IP patents” should be discarded (there’s no “there” there), and the USPTO needs to get out more. A *lot* more.

    • pepe

      How is an invention different from an idea? This is a very difficult question. People try to fix it to the hardware-issue, but this becomes less and less relevant today. If you have a great idea, why should the original purpose of patents not apply? You should be able to make some money of that idea.

      Copyright does not help here. Software patents are not copyrights and not used like copyrights.

      A much easier and more generic approach is to limit the time of exclusive use of the patent. In todays society, with a good idea you should be able to launch your startup within 2 – 5 years and make some money. If the idea is good, people will buy your idea or startup very quickly. If you can’t make that, just keep it secret until you can. If its really worth protection, nobody else will get the same idea.

      • James Butler

        Idea: multitouch navigation

        Invention: The way Microsoft’s Surface computer does it
        Invention: The way the iPhone does it
        Invention: The way an Android device does it

        You don’t profit from the *idea* … you profit from its *implementation*.

        Apple cannot claim dominion over the *concept* of multitouch navigation, just over their *implementation* of that (old) concept, which may be better or worse than any other manufacturer’s implementation.

        Patent is not appropriate for protecting software.

        Software is the written word. Nobody can claim that different compilers produce different versions of the same software, so that makes binaries produced by different compilers and under different platforms irrelevant.

        Only the source code matters.

        Copyright is appropriate for protecting software.

  40. Buzz Lightyear

    Geez Jonathan…and you guys killed it? That was the first demo of a 3D desktop metaphor I’ve seen that I actually think could’ve been successful. Now that Oracle owns it it’ll never see the light of day again. Truly sad.

  41. Tomberries

    It’s Jobs’ evil strategy!
    BUT PEOPLE STILL LOVE HIM.

  42. Will

    Just trying to understand all this in the context of the Sun/Netapp lawsuits. I think that discussion would be enlightening.

  43. May I ask what was Steve Jobs response after the silence?

    • Scott

      Stop rolling out updates to Java on Mac OS X for a while? Now it makes sense.

      • onitake

        “moving java a few priority slots down” sounds closer to reality (to me, at least).
        it wasn’t just lack of java updates, but the whole java blunder at apple: java se 6 delayed by more than 2 years, and then only available for amd64, stopping development on cocoa java bindings, delayed security updates, etc.

        development costs time (and thus money), and java generates only limited revenue, compared to other apple products. tough decision…

  44. shutslar

    Very good article. Your personal experiences as a CEO and how IT/Software businesses are executed here in the U.S. are going to be a great learning experience for many.

    The articles, along with the comments, may make an interesting book for you. I wish you luck and look forward to your next post.

  45. As I understand it, you *have* to sue to defend patents, because if you don’t the “first” time, and you do the “second” time, the courts can ask “why didn’t you the first time” and render your lawsuit invalid.

    I think you have to defend them.

    Steve Jobs said he was going to defend them, said it when he announced the iPhone. I am surprised that the lawsuit was only on 20 things.

    • Jim Davis

      You’re thinking of trademarks/service marks. Patents can be used at any time. (Thus creating the so-called “submarine” patents).

  46. Naveed Chaudhry

    Thanks for this very candid and fascinating post. This is what blogs should be like. Keep it up.

    I like how there’s no beating around the bush when it comes to CEO’s making clear their intentions of suing each others pants off.

  47. Nice post. But the problem is not only software patents. It’s all patents. The patent system is unjust and should be abolished. I’ve written on why they should be abolished here: http://www.stephankinsella.com/publications/#IP (I’m a patent attorney, by the way.)

  48. I always enjoy reading your thoughts. I know I caused you grief at times when I was at Sun, but I don’t hold that against you.

    Sun was content to keep me quiet, just as they were for you…

    When I read your blog it made me realize that I shouldn’t be so quiet about those points now, I have no managers keeping me under lock and key.

    Thanks for your advice and help over the years, I think you would agree I shook the company from the bottom to the top! And nothing I was ever ashamed of…in fact, I’m proud of what I did at Sun, similar to you.

    Regards,
    Alan DuBoff

  49. Jonathan
    Thanks for the comments, which added some color to my article about a silly chip patent suit. Trendchip now dangerous enough to get sued
    Although Trendchip is near the top in volume of DSL chips shipped, until last week the attitude of the other three DSL chipmakers was “ignore them. They only are at the low end.” As Jonathan Schwartz just blogged “suing a competitor typically makes them more relevant, not less.” At Sun, Schwartz stared down bith Steve Jobs and Bill Gates when they threatened patent suits. But Sun lost one to Kodak – in a trial in Kodak’s home town of Rochester.
    Lantiq apparently now considers Trendchip a threat, especially if Trendchip goes ahead with their merger with 802.11n chipmaker Ralink. Lantiq is asking a German court to stop Billion Electric from selling modems with Trendchip inside in Germany. I wouldn’t want to be defending a Chinese company facing a German chipmaker in a German court.
    Lantiq while part of Infineon was a champion of standards aimed at minimal royalties, so I was surprised they chose to sue. They promoted their VDSL QAM chips as preferable to DMT chips in standards because they were royalty-free. Perhaps because they were treated so shabbily by the standards committees they now write “Lantiq takes its patents and intellectual property very seriously. Regardless of company size or competitive position, we will do everything in our power to protect what is rightfully ours and will continue to so.”
    Lantiq like any patent holder is entitled to reasonable royalties, but a U.S. court in the TI-Globespan case established rates that are ridiculous. Globespan’s antitrust defense was so strong that TI settled for $tens of millions less than the judge awarded them to avoid an antitrust battle. The DSL standard includes many technologies covered by patent, making it impossible to design DSL chips without infringing many patents.
    Time for Tom Starr, Malcolm Johnson, Susan Miller and the rest of the standards people to step up and make sure royalties are reasonable.

  50. Andre Richards

    “both Apple and Microsoft ‘borrow’ concepts from Xerox”

    Common misconception. Apple got Xerox’s permission to use their work at PARC and was allowed to hire away people from the project. Xerox didn’t see much value in the project and allowed Jobs to use it. Apple also compensated Xerox later. There was no “borrowing” (by which I assume you mean steal.) Microsoft, on the other hand, reverse-engineered code from the Mac (remember, MS was one of the biggest developers on the early Mac and had access to some of these things) and implemented it in Windows without compensating anyone or asking permission.

    • EorrFU

      MS copying Apple is one of the more common anecdotes used by those who support the idea of software patents. When that happened software didn’t have patent protection.

      • kikito

        That’s because they should be able to copy the “idea”. If they did it better, they should succeed.

        The reverse engineering should be protected by other means (agreements and the like).

  51. Still have that product registration card for Diagram?

  52. This is a great post! I enjoyed reading it.

  53. This is one of those blog reads that gets me terribly dismayed at creating a wonderful tech startup. If it becomes successful enough, it may just get parasited down by patent trolls.

    The effort of patenting, patent trolls -> hahaha. Pure win!

  54. As a long-time resident of Rochester, I can totally understand why a jury there might be a bit biased. It’d be really tough to find anybody there who wouldn’t automatically root for Kodak on principal because Kodak has done so much for the city of Rochester.

  55. Excellent article, I really enjoyed it.

    I’ve been always advocating that software patents are somewhat ridiculous, especially in light of recently granted “linked-list” patent. Apparently, even though developers used this simple technique for years and it’s in all textbooks, no one patented it before.

    Seriously?!

  56. Spinchange

    Hands down, one of the most illuminating -and entertaining- pieces I’ve read in a really long time. Thank you so much for sharing this.

  57. Tom Prieto

    Jon

    You have a unique perspective. Did you ever consider writing a book about your experiences in Silicon Valley and/or Sun?

    Tom Prieto

  58. Pingback: Wordpress Belarus » Blog Archive » Good Artists Copy, Great Artists Steal « What I Couldn't Say…

  59. Enjoyed the blog. I mistakenly spent a good portion of my adult life creating IP in the form of Recording copyrights. I’m not certain that that concept is even assigned a word in the English language at this point, 10 years after the deluge of downloadable music.
    The days of George Westinghouse and corporate congolmerations of IP as a profit strategy are so long gone that any commercial enterprise that isn’t using IP as a footnote to market dominance is doomed.

    One Question though. WHO WROTE THIS???? I find no author. Being a musician and from that world I do not automatically know the names of those that have chaired Sun in recent history. Did I miss something???

  60. Former Concurrence User

    “Concurrence”.

    Ah, the memories…

  61. This is genius. For the first time in my career of having too many ideas I’ve finally filed for four patents. “video deeplinking” and “video article annotation” Google filed for two “remarkably similar” patents. They may or may not ever release a product, we have. Obviously, I’m not going to fight Google. Instead, my company is going to keep innovating.

    The Wright Brothers patented the Wright Flyer and hardly sold a single unit. Their real innovation was the wind tunnel. Thank you for the inspiring article.

    Troy A Peterson
    CEO Nibipedia

  62. Adam

    I really wish Sun could have converted more great products into “selling” products. Sun was a great company and I’m sad to say I think it was one of the last great innovators in the space. I really wish you could have “stuck it to them” Jonathan.

    Sun … so long and thanks for all the fish.

  63. Pingback: Sue me, Sue you

  64. Love the Steve and Bill stories. Great article. Keep it up!

  65. I know these posts can’t make you the most popular CEO prospect in town, but it is nice to get the real scoop from someone widely considered to be one of the good guys.

    Since you have always appeared to be a bit of a deep thinker, how would you solve the patent mess?

  66. Pingback: Jonathan Schwartz tells some IP Patent stories and how Sun responded to Apple and MS on his blog « BlogAnon

  67. Pingback: Steve Jobs’ Threatening Phone Call to Sun CEO Revealed [Blockquote] | Daily Electronic

  68. Gabriele Bulfon

    Thanx for the wonderful reading :)
    About Looking Glass….I’ve always wandered if that name was insipired by a wonderful music piece by Allan Holdsworth, found in the album Atavachron and recently played live on “Blues for Tony” (Tony Williams) with Wackerman, Haslip and Pasqua…
    I should upload a remake of the desktop demo, with that background music ;)

  69. The picture is really good and added more charm to the post..

  70. It hurts to know so mutch evil about apple and microsoft. For that i use (since 3 years) Fedora Linux with OpenOffice.org and Java from SUN.

    Wish you a very sucessfull and happy life,

    dear,

    Kerstin

  71. HZ

    It’s amazing that the big tech companies (such as Sun was) don’t invest more into lobbying to change such pains.

    Software patents, copyright, DRM – all these are based on broken legislation that needs to be changed and everybody in the tech industry knows it. Yet the big players seem to be too scared to say this to lawmakers in public.

  72. HZ

    …to add: And as a result, only some rabid open source / free software nuts and a few insignificant smaller companies speak out against software patents / drm / copyright status quo, which taints the bigger picture of the debate.

  73. First or for most companies Seems to become more and more greeedy. Don’t they get it? Creating something is one thing but marketting is something else. it’s a diffrent type of current under the bridge it must be modlded and shaped into something people will want. For example apple comes out with iPhone developers love it easy to make apps and turns your phone into an accessory that can express your self with. I don’t know about you guys but MS phones never gave me the freedom and easy to download anything I please watch listen or even on occassional update.

    Man makes fire should he have to pay someone to make a barbeque?

  74. bo

    Thanks, inspiring story, Jonathan!

  75. It’s only a shame that you did not also call the security desk afterward to have Ballmer and Gates “escorted” out the building. These people should be treated exactly like the thugs they behave as.

    • DaveK

      Throw him out? It’s an even bigger shame he didn’t have the place wired for sound. “Microsoft owns the office productivity market”? That’s basically a confession to RICO or some other kind of illegal monopoly offences.

  76. AFct check: Nokia did not sue Apple over software patents, but over patents covering wireless technologies, respected by every other vendor. Apple countersued however, using UI-design patterns-patterns, which is software patents in absurdum.

    Patents on software and patents on genes should just stop being valid. Tell your congressman!

  77. Phil

    Thanks, a very interesting article. It seems insane, to me, that something like multitouch screens can be patented – the idea has been around for years and it was demoed by MS with their table-top pc before Apple applied for the patent.
    It seems a shame that Apple seem to be going from (in my experience) “buy our products because they are better than the others” and seem to be moving to “buy our products because no-one else is allowed to do the same thing as us”.
    If it was a truly innovative and revolutionary idea then I’d be a lot more sympathetic to them, but multi-touch? You might as well be allowed to patent the right-clicking a mouse (though this probably is) and then say “no-one else can use right-clicks in their future OS releases”.
    /rant (haha)

  78. The patent systems has to go…

  79. Eek. Ok I’m not buying any Kodak products again either. Stupid patent trolls.

  80. Scott

    I think I am going to like this blog.

    Very well written. Very interesting.

    I’ve always been a Sun Microsystems fan so I wish you all the luck in the world.

    And, please, keep up with the straight talk. It’s very refreshing.

  81. dave

    Great post Jonathan – thanks for the inside view.

    Consensus (here) seems to be that the current IP protection system is broken, inhibiting innovation. Yet most also agree that a lack of said system would be worse in that there’d be a greater incentive to copy than to innovate (ie China). I’d like to see a future post be about your ideas for an improved patent system. Thanks…

  82. There have been a lot of arguments against patents, but Id argue that the problem is with the patent office. Vendors like Apple have been allowed to essentially patent ideas related to interaction that are not all that original. The result is bullying of the small by the large and lawsuits that do more to stifle innovation than anything.

    The patent office works the same way the prison system deals with a broken K-12 education and nascent home life for children – let the courts and the public pay for allowing the incorrigibles to fall through the cracks.

  83. Hyper-Crit ...

    So – out of interest, why did Sun start threatening Silicon Valley firms with it’s patent portfolio towards the end; and why did you not immediately axe the NetApp patent aggression as CEO. Truly – it is said that patent aggression is a sign of a dying company.

  84. Pingback: Tidligere Sun-chef angriber Gates, Ballmer og Jobs « Dschool

  85. No Spam

    How about you tell us how many times you played the roll of Microsoft you describe. I am sure you were the model CEO right and never did anything we would call into question. Pot-Kettle-Black

  86. Frank Earl

    Thanks for sharing the interesting anecdotes on this stuff, Johnathan- it makes for fun reading and it’s something that people should read and pay attention to. It’s faintly surprising that Jobs would have went where he did, no surprise at all about Gates and Ballmer- and a complete shock that Kodak actually patent trolled you guys. Reading the Kodak comments made me go, “Wow…just…wow…”. I won’t go so far as to say I won’t be buying their products again- but it’s moved them down a couple of rungs on decision making.

  87. m

    good old lighthouse apps, fondly remember that stuff, and still disappointed that after the acquisition sun seemed to just sort of shutter it. so much potential to pull a keyser soze, but I understand because the transition from NeXTStep to OPENSTEP must have been painful, and then having the transition to OS X looming in the future, anything decently sized besides omni even make the transition?

  88. Fubar the Haq

    Is this search patent serious?
    I have prior art going back to ’87.

  89. Vitaly

    Being part of IP litigation in a very big software firm I can say that today’s software patents situation is like cold war between giants and terrorists (trolls) attacking them.
    Beautiful post.

  90. I miss Lighthouse, damn it.

    As far as I’m concerned, what Lighthouse provided on NeXT set the bar at a level we are only recently able to reach with OO.o.

    It’s a shame we were never able to use those incredibly awesome tools to the extent they could have been.

  91. Martin

    Quoting Danny Devito. “Of course I’ve got lawyers. They are like nuclear weapons: I’ve got em coz everyone else has. But as soon as you use them they screw everything up.”

  92. AC

    In other words, software patents are expensive, raise costs for consumers and ultimately represent a stumbling block only to small players. Sounds like an argument to turf them to me.

  93. Hi Jonathan,

    Probable a good example why patents are killing innovation instead of promoting it. Funny story.

    This makes me remember another funny story I read some years ago in press bashing Sun Microsystems making proprietary systems and operating systems… but the guy later was praising Apple for its glory and merits in software industry :)

    And folks keep buying Apple products…

  94. Martin

    Thanks Jonathan for sharing this.

    What do you think about the Software Patent system in the US ? It had been very critized world wide.

    For me it even looks so liberal that someone can patent the “File->Save as…” and start charging everyone money for it.

  95. That is really funny!

  96. Hey! I saw that very same garage door last weekend. Someone was parked in front of it.

  97. Boon

    Thank you for coming out with your story. I think IP stories like that are so important this day in age especially coming from such a high profile high tech person such as yourself.

    Thanks.

  98. Lily S

    A strange game. The only winning move is not to play.

  99. decora

    does anyone else find it hilarious that Mr Jobs, who got his start selling blueboxes (illegal phone hacking equipment) and ripping off Xerox PARC, and who now builds his products in sweatshops using child labor, is trying to claim some kind of moral high ground?

  100. This finally reached the media in Germany too.
    If all that is true, it gives some /very/ interesting insights in the true intentions of Apple and MS.

  101. Rolf B

    Nice story from behind the scenes. 1 – even though I first thought as well that whoever ownes Go patents could tap into the golden pot, after seeing the iPad demoes I see nothing similar in UI.
    2 – Now Jonathan, if you could shed some light on the story of ZFS. And why Apple seemingly gave up on it. In ’06 they started to go for it.
    Thanks in advance.

  102. Thanks for a good post, I don’t see why Apple are getting so excited when they have sold like 40 million phones across the world.

    They should concentrate on developing new innovative technology rather than simply suing others.

  103. Cell Tower

    Nokia/Apple is a bad example. The price of entry to the mobile oligopoly is to offer something everyone else needs. Nokia probably just wants access to Apple’s multi-touch patents.

    It’s not about killing the iPhone, it’s about taking a cut. No surprise Apple is resisting, that’s just their culture.

  104. Been There, Done That

    So “good artists copy, great artists steal”…

    And what about the people who actually *create* the original work? They’re not even given the appellation of “artist” while business mobsters like Jobs are.

    The implication from your cynical little essay is that the real fools are the ones who created new works and immediately got badmouthed, ridiculed and wrecked while companies like Sun and Apple merrily stole – and then people like you are “shocked, shocked” to find that someone even bigger (Microsoft, Wang) stole from you and has a bigger patent dick.

    And you haven’t even mentioned the 500 pound patent gorilla in the room yet – IBM.

    If they and you simply stole (or “re-engineered”) these works from people ranging from open source individuals to small companies, it might be tolerable. Giving credit where credit was due (especially for those who put their software under the open source copyrights like the BSD copyright or the GNU copyleft) would have been smart. But, nope – these people who practiced what they preached got screwed. When companies go on to damage these people, impede their income stream and blackball them, it sends a message loud and clear that anyone who seriously attempts to change the paradigm but follows the rules (like allowing source code access) is a fool.

    If you want to know where the “patent game” nonsense in software came from, it was spurred by companies like AT&T and MSC and, yes, even you, playing the easy game of “reinvent history to suit”, blurring attribution – which is the “prior art” counterweight to a fake patent necessary to keeping lies in check. When you undermined the value of copyright and open access to ideas and new works, the only place left to go *is* patents.

    The reason America in general and American business culture in particular is so terribly screwed right now is the insistence on keeping unfair advantages on the theory that it might benefit you – even if it in practice damages you. Every company in the valley acted this way over the last 20 years even though the patent game is a big guy bloodsport game that impedes the fast mover.

    The real upshot is that SV companies stopped believing they could move quickly once they got some kind of foothold and bought into gambits like fake service contracts and playing money games with international transfers and the like.

    So as the maxim says, “Heal thyself”. It’s far too late for Sun, but not for you – maybe.

    • S. M. Das

      > So “good artists copy, great artists steal”…
      >
      > And what about the people who actually *create* the original work?

      Well, those would be *engineers*. :-)

      The corollary is:

      “Good engineers are artists, with neither plagiarism nor theft”

      I’ve had the privilege of working with several, during my career, of this calibre.

      • Sunny No More

        Not necessarily, of course. E.g. the Looking Glass stuff, and the patents it supposedly infringed, were mostly created by desginers, not engineers…

  105. Atul Kapadia

    Smugmug is awesome. As for other issues, do you have any suggested solutions? Companies should stop suing each other for IP violations? Better prosecution of IP in some other regulated body? Patents should have suggested royalties associated with it i.e. ISR (inventor suggested royalty)?

  106. Scott Dunn

    Jonathan,

    I just want to say thank you for that great bit of history! I gasped and laughed, too!

    Very cool.

    Scott

  107. Nice story, so it’s a good news that you are no longer Sun’s CEO.
    I hope we, here in Europe, still won’t patent softwares

  108. Lee

    And herein lies all the evidence you need that the software (and hardware) industries aren’t capable of innovation, primarily down to self interest and greed.

    Developers rarely feature in the thoughts of most commercial software/hardware companies.
    Money first, innovation last

  109. Very nice post man. It is very interesting to know all that and how all the big lords of the technological era play. It feels like World War 2 and all its war lords (Roosevelt, Stanlin, Churchil, etc) Patents slow down innovation. I guess something similar will happen after men get on Mars or other country, a single country will want to have total control of that planet and other people from different countries will have to pay them to stay there.

    I am sure Japan, U.S, Frace and most likely England will do everything in their power to be the first ones. (going too far from the topic, hahaha sorry)

    Anyway, please keep telling us your stories, I really enjoy them. They really help understand our technological era.

  110. Jed

    Apple’s OS X operating system is based on FreeBSD, not unix.

    • Skippy

      To quote Wikipedia: “FreeBSD is a free Unix-like operating system descended from AT&T UNIX via the Berkeley Software Distribution (BSD)… It is not a clone of UNIX, but works like UNIX, with UNIX-compliant internals and system APIs.”
      in other words, close enough for most people.

  111. Andreas

    I don’t get it. OS X is build upon Free BSD and Apple is coining money like hell. So what is Steve Jobs really up to? What is driving him? What kind of idea gives his life a sense.

    Metaphorically spoken: Nobody can eat more than –let’s say 10– meals a day. Why then do some people think that they need 10.000 meals a day without sharing a single slice of bread?

    Sorry folks, I don’t understand this. I am simply not capable of seeing the point. Maybe I am stupid, but at least satisfied with myself.

  112. Skippy

    I don’t really understand. You’re saying that you lost to Kodak because you didn’t have a valid counterargument because their tech history was so thin. But is that really how IP suits play out? The defendant stands up in court and says “Oh yeah, well the plaintiff does it too”? I can’t see how that’s a winning strategy. I guess the threat of a countersuit is often enough to discourage the original suit?

  113. What ever did happen to Project Looking Glass? I mean I know Sun got bought out and all but that was the most awe-striking GUI I’ve ever used. I’d pick that over Windows or OS X any day.

    • An Diugh

      It was open sourced when it became obvious that it was great for demos, but zero use as an actual production desktop. You can still pick up the code from the project website, but as you can see when you visit, nobody else was really all that interested in it either.

      https://lg3d-core.dev.java.net

  114. e39dinan

    You must be looking forward to a possible VHC (VirnetX) victory vs. MSFT. karma is a bitch.

  115. Jose

    I hope to never see this kind of patents in Europe. Thx for the story, it confirms my worst nightmares.

  116. Fredw

    The defensive use of patents is fine for the big ( read that moribund ) tech companies, but the small developers where innovation should be born have no ammunition.

  117. Jonathan, it was nice that Sun had a patent war chest to defend itself against these threats, but what about small software companies, the true engines of innovation, that don’t?

    I’m disappointed that you didn’t take what should be an obvious next step, given the experiences you recount, and acknowledge that software patents are bad for competition and innovation in the software industry.

    The reality is that any benefit to innovation due to software patents (and I’m unconvinced that there is any at all), is dwarfed by the harm.

    Whether its incumbents using patents to threaten or squash competitors, like Apple and Microsoft, or patent trolls, innovation suffers. We’d be better off to return to the state of affairs prior to 1990 when software patents became popular.

    • Sunny No More

      One of Sun’s big problems was that half the company thought exactly that about software patents, while the other half was still trying to accumulate as many as possible.

      I distinctly remember being in a Sun meeting in Dublin one day where some engineer was being lauded for having been granted some new software patent or other, on the very same day that this press release hit the wire: http://www.europe.redhat.com/news/article/431.html

      Left hand, meet right hand.

      • Its not necessarily a contradiction.

        The insidious thing about software patents is that even if you believe the world would be better off without them, it still makes sense to acquire them as a defensive weapon. Its like nuclear warheads, you might wish nobody had them, but since other people do have them – you need them too.

        Only the courts or legislators can break this cycle by making it clear that software isn’t patentable, in a manner that can’t be circumvented with sophistry like “computer-implemented inventions”.

        If in doubt, we must err on the side of fewer patents, not more.

      • Sunny No More

        It’s true that it’s not necessarily a contradiction, but the fact that Sun (AFAIK) still rewards its engineers with certificates and shiny little plaques whenever they’re granted a patent suggests that some part of the company is rather proud of the activity, while another is publicly decrying it.

  118. You are no one til you are sued. Great read!

  119. Hello Jonathan,

    This is one of my new favorite sites, I’m glad I found it, and love to hear about all these little quibbles that happen in big business. I work in IT for SmithMicro, and have a love/hate relationship with hearing about stuff like this. It’s frustrating to hear about the CEO-staff’s ‘big ideas’ like “looking glass,” when a smarty pants in IT, or some other department could easily save everyone time by saying it’s not necessary…

  120. Makk

    Go! Corporation?

    You’re aware that patents have a 16-year term?

  121. dusty

    are you sure it’s not good artists create from inspiration, thieves steal.

    Hope your project turns out well, cause from the title it would seem misguided

  122. This is a really amusing blog entry. I had dealing with Kodak many years ago.

    Have you had enough of running a company?

    Someone I ran into yesterday wants a CEO with your level of rep.

    Keith Henson (yeah, that one)
    hkeithhenson@gmail.com

  123. A great read–thanks, Jonathan!

    @RolfB re ZFS My understanding of the situation is this, bearing in mind that I have no inside knowledge: the ZFS source code uses the CDDL license, which states (in part) that changes to the source code must also be published under the CDDL. Apple wanted to make changes (for their own reasons) to ZFS code, but didn’t want to share those changes. Sun refused–as they should!–to license the ZFS source code to Apple under a different license, so being the proprietory control freaks they are, they abandoned it.

    Big mistake if you ask me: ZFS is *fantastic*!

  124. Fascinating writing!
    Foresight is tough. How come the jury came up with a “hundred million dollars” verdict?

  125. Julian

    Jonathan,

    Great article. I’d love to hear if there was anything more to Apple and ZFS. It would have been great to see ZFS on a Macbook. Also, can you comment on the NetApp vs. ZFS dispute?

  126. Mr. Schwartz

    I’m sorry but your attack on Kodak seems heavily biased.

    Of course let me preface this with two things. I agree being able to protect against patent suits by having lots of your own patents is a great way to fend off companies. Also I live in Rochester.

    First it seems highly counter to the practices of Kodak to be a patent troll. While Kodak (and Xerox for that matter – Another Rochester child) protect their patents quite aggressively from what I hear, I have never heard of them maliciously using the patents to sue other companies.

    However even had Kodak acquired a patent simply to sue does it make it okay to steal a patent that doesn’t belong to you simply because the company is incapable of protecting it? I don’t think so. I hope you don’t either.

    My other major issue is your entire Rochester court room issue. I have few issues with this.

    A. I may be wrong but I’m pretty sure this is typical. Companies that sue others get the “home field” advantage

    B. You seem to suggest that Kodak had a unfair advantage. The fact of the matter is Rochester is a very technology driven city. It has been for a long time and shows no signs of stopping. I would find it very hard to believe that Sun was incapable of finding suitable jurors to hear the case.

    C. This is the largest issue. Kodak asked for $1.6 billion in damages. According to you they didn’t get close to that (quick Googling didn’t reveal the number).

    Beyond that it doesn’t seem Sun at any point tried to argue that Kodak was patent trolling (which I think should be illegal), but instead that Kodak didn’t protect the patent in the manner they should have. Of course this brings us back to that fact that Kodak protects their patents aggressively, but I suppose it doesn’t matter since the jury clearly didn’t agree.

    I like Sun. I agree with your basic point of view in your post. Java drives me nuts, but it makes things on the internet work. I love the concept of Open Office. Apple recently has driven me nuts. Microsoft may be falling back into their old ways. Oh and I’m very loyal – Especially to local items.

    So maybe I’m just being biased when you bring up Kodak. However I think all my points are valid so I don’t think so.

    • Vincent

      Well, you are really biased and it shows.

      >However even had Kodak acquired a patent simply to sue does it make it okay to steal a patent that doesn’t belong to you simply because the company is incapable of protecting it

      Sun didn’t *steal* the patent. They had developed it on its own, and once they were successful, Kodak found something that *could* be interpreted as prior art that they held the patent for.

      Its almost certain that *any other court* but the Rochester court would have ruled in favor of Sun. Basically, you have an aging company looking for a quick buck by exploiting the naive and unscrupulous Rochester jury.

      • First your statement that any other court would have ruled in favor or Sun. Is that a fact? Do you have some sort of reasoning behind this beyond the fact Rochester is the home to Kodak?

        Second prior art is prior art. Again you it isn’t fair for a company to get away with trademark infringement simply because the company can’t defend the patent.

        Third like I said. Kodak isn’t a patent troll. If they wanted to be I’m sure it would be quite easy. Especially with all their military/space technology. Kodak is hardly a old out dated company. Sure their developed film has fizzled out with time, but Kodak is a much larger company that consumer film.

  127. Jonathan, you should now become a full-time blogger if you’re still looking for something to do after Sun. Seriously, you’ve always had it in you and post after post, you are proving yourself again and again.

    I’d love to see you go Om Malik’s or Leo Laporte’s way way.

  128. Jason H.

    In Kodak v. Sun, did you guys actually have to write out a check for $92M?

    That’s a huge amount for a patent case, as far as I can tell. Seems like these kinds of things usually drag for years in appeals and then get settled for some kind of funny-money payment-plan/stock/acquisition deal. So that’s remarkable if you actually had to pay up front with real cash.

  129. It was great to read for me.
    I agree Julian I would also like to read more about Apple and ZFS

  130. I’m very curious where openoffice is headed after all this. And java. And mysql. And opensolaris. That’s a big slice of what’s (been) open.

  131. Very good post, it comes to show how software patents can stiffle innovation. Keep up the good work.

  132. Amusing…good read and a fantastic article.. And Nice pic :)

  133. notrealfanboi

    Hi Jon,
    Could you just add one more line in the About section – it’s redundant, given your identity, the last few years, Oracle’s purchase of SUN, and lmgtfy.com

    However, the web is based on hyperlinks and people come here from every kind of site, and every level of ignorance of “IP” and Patents. Large sections of the human population admire the business practices of Microsoft because they perceive the vast celebrated success of Microsoft on the desktop. So, an honest presentation of historical facts sounds more like libel and slander when directed against Microsoft or Apple – they changed the world, you see.

    So, I’d just ask for a few lines to be added to your “About” page (copy-paste if you like it :-) ):

    “Every event mentioned in this blog is factual. Proof, that would stand in court, may or may not exist for each event, but nothing about the mentioned events is false.”

    This gives a bit more weight for newcomers to understand the issue of IP and Software Patents. That industry leaders think like this is not always apparent to young _impressed_ minds.

    TIA (hopefully)

  134. Corey Johnston

    Miss you already Jonathan.

    Thank you for open sourcing so many good technologies in your time at Sun.

  135. abcslayer

    I read your post with a different view.

    Patents should be protected by patents.
    Patent is money and it can be traded by patent(s).

    That is the true reason and motivation for big giants to invest more and more in research and gaining patents as well.

    Nokia is an patent holder, they sued Apple. Apple sued back since they are also patent holder. Fair!

    Apple sued HTC, if HTC is an innovator as they claimed they should have some patents that are important enough to sue back; then fair!

    The problem is some tech giant like Apple could gain such very basic patents that are important for every single steps in industry evolution like something related to object-oriented OS and IC power management. I guess Sun, Microsoft, AT&T, IBM should have something similar.

    • ABCSlayer… You sound like a lawyer. Lawsuits are expensive, and the only people that ever consistently win are the lawyers. Our system of “adversarial justice” has some deep flaws.

      If you must sue, go to the suer (sewer).

      –Jerry

  136. Rochester, NY: Land of missed opportunity.

    I grew up and still live in Rochester. I was born at the end of one of Rochester’s peaks. My parents moved here so that my dad could work for General Dynamics, then Sybron. Ritter first then Taylor Instrument.

    I watched the big companies die in Rochester. GD left Rochester. I was personally affected, by Sybron’s demise. Both of which left small companies in their wake, but nothing like what was once here.

    That aside, let’s look at the real lost opportunities in Rochester. Kodak, Rochester’s largest and original tech company (laugh all you want, what George Eastman did was ground breaking in its time). From their beginning in 1892 they were a great success. The company grew by leaps and bounds. However in 1906, one of their employees, M.H. Kuhn, left to start a small company bearing his name that made photographic paper.

    Not long after that they became a company known as the Haloid Photographic Company also making photographic paper. Kodak missed out on a huge opportunity. The Haloid Company changed its name to Haloid Xerox and then just to Xerox.

    Fast forward 62 years the incredibly successful Xerox decided to start a research center in Palo Alto, known as Palo Alto Research Center or PARC. PARC was a hotbed of research through the 70′s and into the 80′s creating many ground breaking technologies. Xerox decided not to capitalize on these opportunities and allowed most of the ideas to escape. Most of these are well known: smalltalk, a concept desktop PC, a windowing system, a word processor, ethernet, etc., etc., etc. As I’ve read over and over again, the “toner heads” at Xerox refused to market things that turned in to really amazing products.

    So the lineage of missed opportunity in Rochester breaks down this way:

    Kodak -> Xerox -> 3Com (Bob Metcalf created ethernet while at PARC), Adobe (PARC created a precursor to PostScript), Apple (ex-PARC employee became the chief scientist), Microsoft Word (Charles Simonyi rewrote Bravo for Microsoft and it eventually got named Word) . I’m sure there’s more that I missed.

    This long story leads me up to my point. Kodak was/is grasping at straws.

    I do not agree with what Kodak did. I believe that the only way that we are going to advance is if we don’t put these large barriers in the way of progress. In order to do this we need to be able to stand on the shoulders of giants, the preceding ideas that allow other ideas to be born. Patents are the exact opposite of this notion.

    However in regard to Kodak, there’s not much left there. It makes me sad. So maybe from Kodak’s point of view this law suite was just a way of trying to recapture all of the missed opportunities that originated in Rochester, NY. I doubt it, but I retain that unrealistic optimism.

  137. Great read. With the way things are today I wonder if computing will ever have a peaceful day…

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  139. Your title quote is in correct- BAD ARTISTS COPY GREAT ARTISTS STEAL- PABLO PICASSO

  140. Ashish Khushu

    Good Stuff, we all know that what we see is not what is. So keep it coming, break the glass walls.

    Cheers to the free spirit!

  141. In todays world, with so many information, it’s virtually impossible not to create anything without base it on an existing product.

  142. bob

    Jumbo shrimp isn’t really an oxymoron. Just because when everyone hears shrimp, they think of a tiny creature, doesn’t mean a large variety would be a biological oxymoron.

  143. Swamy

    Nice article. We do hear lot of rumors but it is great to hear from you Jonathan.
    And it is interesting to know what happened behind the scene. It would be nice if you can share your such experience here.

  144. Nice article. Good to hear again from you. Keep posting..

  145. Kiran

    Go Jonathan Go!
    Software patents are the most ridiculous thing ever!

  146. Patents related to how operating systems, and their foundational technologies, work.

  147. Adarsh Joshi

    I always respected Steve Jobs. What a shame!!
    Well, its expected out of Bill Gates though…

  148. Weren’t those the days…when Sun was suing Microsoft for failing to implement the core Java patents/standards…and won (a financial settlement)? In this case – and as you know I’m biased – the suit made Java and Sun more relevant, not less.

  149. Dr Rob

    Wonderful ancedotes, keep them coming please!

  150. Chris Strobel

    Jonathan, great you’re blogging again, I really missed it!

  151. Nan

    Great article and Nice Pic!! Thanks for sharing this!!

  152. kingbiscuitpants

    I’m a loyal and enthusiastic openoffice evangelist. It works it isn’t a resourse hog, its reliable and best of all free. even if i could afford windows office, i’d stay where I am because the software is elegant & makes me happy case cl0sed

  153. Steph

    The ‘my pile (of patents) is bigger than your pile’ or ‘mutually-assured-destruction’ approach has been a staple way of doing big business ICT sphere for decades, in the US and elsewhere.

    As a (UK/EU) patent attorney specialising in software and telecoms (there, I’ve said it, and the flameproof suit is on), it is disheartening to see the constant, uneducated calls for an abolition of the patent system as a whole, or for an exception for the field of software. Yes, many suits -threatened or actual- are frivolous, many patents are invalid (granted despite being anticipated/obvious), many business practices based on patent portfolios really test the boundaries of business ethics.

    Show me a system, any system, legal or otherwise, which hasn’t been abused for gain at one time or another?

    I wouldn’t say the “system is broken”, however, because in their vast majority, patents are used exactly as they should be: as business tools (amongst many others), churning out opportunities to their owners during their useful term. E.g. leading to cross-licensing agreements or pools, or to a revenue stream against a technological ‘leg up’ to competitors /complementary/parallel industries, or even (in a MAD situation such as depicted by Mr Schwartz) to lowering or neutralising barriers to accessing a new market.

    As usual, it’s easier and simpler to bash the consequences (invalid patents) than to cure the cause: a malfunctioning (not broken) system.

    Governments grant patents. In the case of the US (like any other jurisdiction) the Federal Government resources the USPTO, which has been chronically under-funded and mismanaged for very many years now. This may explain that. Or maybe the consequential turnover in Examiners, lately reaching comical, if not epic, proportions.

  154. captaincali

    I love that pic, haha

  155. Technology is the result of many great minds cultivating ideas into systems and solutions from which we all benefit. It amazes me just how many overzealous narcissists–in key corporate positions–believe they alone are responsible for advances in technology. While Al Gore did not really claim to invent the Internet, there are plenty of people who would like to claim responsibility.

    Great insight. Outstanding article.

  156. Steve Jobs is supposed to be this great guy who built a huge company out of a garage and then when I read such stories, it sort of takes away the respect I have for him, bit by bit.

    What’s the whole thing for him wanting to sue people for tiny issues like the one you just mentioned? I have read similar stories before too.

    Sad.

  157. Hi Jonathan. We got a boatload of patents for the Java Car and were bothered about whether it was a moral thing to do. We were the first Linux advanced development project at Sun as far as I know.

    We decided to go for it mainly for both protection, because they were core technologies rather than frivolous, and due to its being a new area for Sun. I suppose its moot at this point, I doubt Oracle will be pursuing the auto market, and naturally the most innovative parts of that work were ignored by both Sun and the auto folks.

    Patents appear to be better structured than copyright, which seems to have become far more harmful, at least if you accept Larry Lessig’s views, which I certainly do.

    One problem we encountered is that companies themselves simply are almost always too rigid to be agile enough to shift to new policies quickly. Witness how long it took us at Sun to really embrace open source. The NeWS window system was awesome yet X tromped all over it due to being so open.

    So the question is: how do we get the corporate mindset to change to something like Creative Commons?

    Studying Complex Adaptive Systems here in Santa Fe suggests looking at game theory and evolutionary/heuristic approaches which evolve non-zero sum solutions to the legitimate IP concerns companies and individuals do have.

    Hope all is well,

    — Owen

  158. Chris

    To Steph:

    In your case, your independence as a legal attorney is compromised because you have an interest in keeping patents alive. You benefit from keeping them alive, as such, one must view your opinions with skepticism.

    The real question is not what is best for individual corporations or persons, but what is best for society as a whole. I think that we as a world need to have a fundamental debate on patents and intellectual property. This is no longer the 18th century when a few simple experiments could yield new advancements. Instead, R&D is expensive and time consuming, with no assurance of success. How do we compensate for that without damaging society? How do we ensure that we create a system that promotes innovation and discourages such trolling? Who enforces all of this?

    Why is it that nobody is asking these sorts of questions? Now that is the problem and probably why we are here.

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  160. So, any thoughts on the Oracle patent suit against Google?

  161. Eric

    My first research paper in grad school was on the topic of the technology of photojournalism. In my research, I found a story about how Kodak got its start. They stole the formula for flexible film from a man (can’t remember his name now) and he later sued them and won a million dollar judgement against them. In the 19th century, that’s a lot of money!

  162. Jonathan, great you’re blogging again, I really missed it!

  163. Yes sir, I could not agree more. “Good Artists Copy Great Artists” is a true and informative piece of brilliance.

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    This kind of world is the end of internet we know. And I am surprised to see so many supporters.

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  174. As a long time Java developer I feel like a Parisian in Nazi held France. RIP in Sun. We miss you. And Java will be missed dearly. It’s a shame to watch Oracle extort your legacy and destroy open source for America.

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  176. Great article :) I also had a great laugh from the picture! Thanks :)

  177. taurolar

    We decided to go for it mainly for both protection, because they were core technologies rather than frivolous, and due to its being a new area for Sun. I suppose its moot at this point, http://offdb.com/ I doubt Oracle will be pursuing the auto market, and naturally the most innovative parts of that work were ignored by both Sun and the auto folks.

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