TLWIR 38: Google Trumps Oracle: What Does This Mean for Patent Litigation?

Summary

Oracle Corporation of America just suffered a massive defeat at the hands of Google in its patent infringement lawsuit. A California jury decided that Google did NOT infringe on Oracle’s Java patents with its ubiquitous Android operating system. This decision has a significant impact on the future on the of Free Software. After this decision, will anyone dare try to shake down a FOSS-based company again?

Historical Precedents

In 1990, Michael Gerard Tyson was the “baddest man on the planet”. The 24 year old was at the top of his game, having destroyed his first 37 professional opponents without mercy. The aura of invincibility surrounding this young man was palpable, and his opponents trembled in fear at the mention of his name. All of that changed on a fateful Sunday night in Tokyo, Japan. On February 11th, 1990, a 42 to 1 long shot performed a miracle. As the fight proceeded, it was clear that this was not going to be an ordinary affair, by any means! By the 5th round, the unthinkable had happened: Mike Tyson’s left eye had nearly swollen shut. That single image has changed the world as we know it…permanently. On Sunday, February 11th 1990, the concept of an unbeatable champion perished forever. The image of Mike Tyson struggling to get up in that fight after being knocked down for the first time in his career was all that I could think about when I saw the news footage of Oracle executives confidently swaggering in to the court proceedings against Google. I thought to myself: “they are extremely confident, but if they lose this fight, it WILL be one of the most massive upsets in history”.

“Houston, I Think I’ve Lost My Mojo”

When an elite professional loses their “first step”, their fiercest competitors are the first to notice it. Once they do, it is virtually impossible to ever regain the air of invincibility. Michael Jordan was STILL a great basketball player when he returned to the NBA in 2001, but his opponents were not afraid of him anymore. They instinctively perceived what he had lost. Mike Tyson was still a destructive force after his 1990 loss: he won his next 8 fights. However, the perception of him by his opponents was never the same. Tyson was never able to soar to the levels that came so naturally to him before 1990. Oracle’s defeat will have a more lasting effect than anyone currently realizes. Now, organizations that seek to use patent litigation as a profiteering tool will second guess themselves. In 2010, Java creator James Gosling described “how we could see the Oracle lawyer’s eyes sparkle” when they analyzed the opportunities to use Oracle’s Java patents against Google. I suspect that in the future, such opportunities will not look nearly as appealing.

The Road Forward

Ultimately, I think that the decision against Oracle is a wonderful thing for Free Software, and software in general. In my mind, software should NOT be patentable. Software represents the writer’s conceptual way of thinking: software is basically a set of ideas. The same problem can be solved an infinite number of ways. A hardware implementation, on the other hand, such as a pump or a motor, is much harder to come up with, and there are a much more limited number of options. There are only so many ways that you can efficiently distribute the weight of an automobile so that it can efficiently move forward (the tire being the best solution so far). Hardware implementations SHOULD be patentable, software and other ideas should not. The idea of a piece of hardware should not be patentable, you should actually have to produce a prototype first. A patent application should be reviewed by a technical expert in the field, and that expert should have a working prototype to examine. The patent review process should be probing, long, arduous, and painful. The reviewer should be naturally inclined to think that the design/implementation is obvious and unpatent-able. The burden of proof should then be on the inventor to prove that the design/implementation actually IS unique, original, problem-solving, and revolutionary. This would discourage abuse of the system. An inventor would only apply for a patent if he or she knew that they had truly come up with a revolutionary piece of hardware. Oracle’s loss is, in my opinion, the first step in the death of software patents.

Conclusions

I hope that the Oracle decision helps the Free Software world to breathe a little bit easier. Oracle’s loss is a huge win for freedom, in my humble opinion. Thank you for reading The Linux Week in Review 38. I am anxiously awaiting the release of Fedora 17: I WILL see you then.