Its Too Soon for Kodak to Smile and Say Cheese

Opinion: Despite Kodak's initial victory in its Java patent dispute with Sun, the company will be hard-pressed to prove it deserves a $1 billion settlement.

Whether or not one accepts the idea of patents on software concepts, there are plenty of targets that one could choose in shooting down the claims of Kodak versus Sun. So far, it appears that we have at most a finding of fact that Sun did things that were covered by patents held by Kodak: Its a long, hard road from there to the end of a rainbow with a billion-dollar pot of gold for the plaintiff.

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Theres the question, of course, of whether the patent was properly granted for an invention that is actually novel, useful and non-obvious. We could stipulate the "useful" part, I believe, without any argument from anyone involved: The core idea of extensible software systems, in which objects of new types can be invoked without costly and complex re-architecting of the entire pre-existing system, is clearly A Good Thing.

Novelty and non-obviousness are a little less free from doubt. It would seem that there are fertile fields in which to dig for "prior art," that is, for earlier work already embodying the same "inventions," in object-oriented systems that were well-established as research and even as commercial development tools as much as a decade before the patents in question were granted.

The claims in Patent 5,206,951, for example, describe a means by which "two processes that are to cooperate in a data interchange operation identify each other and to identify data formats they have in common." That patent application was filed in 1991, but the facility described in that claim sounds an awful lot like the multitier cut-and-paste capabilities of the original Macintosh clipboard feature back in 1984. The roots of the Macintosh, in turn, were several years old at that time.

There are additional grounds for doubting the actual magnitude of this verdict, in terms of the pain that it represents for Sun. Some of those grounds are less a matter of objective technical fact and more a matter of discussing Kodaks strengths in the marketplace of ideas.

Specifically, even if we agreed that Kodak clearly owned the inventions on which the Java technology is based, it would not be enough for Kodak to prove that Sun made lots of money by selling Java without giving Kodak its cut. Kodak has to prove damages, not just quantify its envy.

If Kodak cant make a plausible case that Suns sales came at the expense of sales that Kodak might have made itself, absent Suns hypothetical infringement, then Kodaks appropriate damages start to look more like the amount that it would likely have made in royalties and license fees—not like a major cut of Suns earnings from the supposedly infringing sales. Theres also the question of whether Kodaks action was sufficiently prompt to prevent Suns invocation of laches, the legal doctrine that rights must be defended promptly—in the realm of patents, this is sometimes said to be a time frame of about six years. Kodak acquired the patents from Wang in 1997: When do the clocks start running?

In short, the initial verdict is one link in a chain that may have some pretty weak links by the time that its been forged from end to end. If Kodaks hopes of a billion-dollar payout are going to hang from that chain, I wont hold my breath for that Kodak moment.

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