With his tenure in Sun's executive suite behind him, Jonathan Schwartz exercises his new found liberty to disclose two incidents involving Steve Jobs and Bill Gates and their respective threats to sue Sun for patent infringement. Schwartz relates how Sun successfully played the countersuit card, staving off the threatened litigation.

In the confrontation with Jobs and Apple, the issue was Sun's desktop Looking Glass, which Jobs claimed infringed on a number of Apple patents. Schwartz said he responded, noting similarities between Keynote and Concurrence, both presentation products, the first from Apple, the second from Lighthouse Design, a Sun acquisition. According to Schwartz the derivation was apparent, as were the traces of Lighthouse technology in the work done for NeXTSTEP, the Unix-based operating system whose core would become the foundation for all Mac products after Apple acquired NeXT. At that point, Jobs abandoned his assault, Schwartz writes.

During their visit to the Sun executive offices, Bill Gates and Steve Ballmer threatened action against Sun over alleged patent infringement involving OpenOffice, except that the Microsoft execs were offering a licensing agreement with royalties payable to Microsoft for every OpenOffice download.

In this case, Sun noted the obvious debt to several Java patents owed by .NET, suggesting a royalty for every copy of Windows sold, payable to Sun. Microsoft declined and returned to Redmond, Schwartz writes.

Schwartz says the lesson learned from these encounters and other similar confrontations observed as a third party is that, " ... suing a competitor typically makes them more relevant, not less."

Commenting on the intrinsic value of patents, Schwartz writes, "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."

Yet, not even patents are an ironclad defense, he concedes, as was the case when a Rochester, New York jury decided in favor of Kodak, which had sued Sun over Java Remote Method Invocation. That Kodak was then a Sun customer complicated things further, Schwartz notes, making extended litigation costly in more than just lawyers' time.

"For a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace," Schwartz concluded. [...read more...]

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