Thread: Re: [pgsql-advocacy] Oracle buys Innobase
Jim C. Nasby was quoted as saying: > > Jim C. Nasby wrote: > > > Of course one flip-side to all this is that if Oracle does attack us it > > > actually lends credibility; it means they see PostgreSQL as a threat. At > > > this point that could do more good for us than harm, depending on how > > > exactly the attacked. > > > > Well, that was MySQL's reaction to it, but I think the harm far > > outweighs the good for them. Its more like, "Oracle finds MySQL a > > threat, what is MySQL going to do now!" We don't want that kind of > > outcome. Also, there are ways of attacking that do not show Oracle as > > an agreesor, like hiring PostgreSQL developers. > > Well, they effectively took a big chunk of MySQL's commercial technology > away, something the'd have a harder time doing with PostgreSQL (unless > we're violating patents). -- Doesn't really matter if the legal issues are ultimately in one's favor, if one's erstwhile opponent has enough lawyer time... even if you can survive the lengthy battle, it may well be a pyrrhic victory. Not having specific assets to be tied up helps, but Oracle could then generate enough FUD it would hamper the use (and spread)of PostgreSQL. Oracle would probably not do so directly but through some 3rd party (or parties). OTH, has PostgreSQL cost Oracle enough, or does it threaten to cost enough, to make such a venture worthwhile? In the shortrun it would generate a lot of unsympathetic press and some support for the project. My $0.03 worth ... and now back to work. Greg Williamson
>> Doesn't really matter if the legal issues are ultimately in one's favor, if one's erstwhile opponent has enough lawyer time... even if you can survive the lengthy battle, it may well be a pyrrhic victory. << Well, I would assume two things would happen in a case like that. The first is that any patents we are alleged (unless theyare truly rediculous) to infringe upon would be coded around very quickly. Secondly, I am sure that there would be afund-raising campaign for legal fees. The patent issue is actually very dangerous. I would be particularly worried about issues such as collateral estoppel wherethe moment we as the community lose one suit, it makes it harder on every other member of the community to fight similarsuits. Therefore I would hightly recommend that in a case like this we really avoid letting something go to trialunless things are really clearly in our favor. IANAL though. >> Not having specific assets to be tied up helps, but Oracle could then generate enough FUD it would hamper the use (and spread)of PostgreSQL. Oracle would probably not do so directly but through some 3rd party (or parties). << The danger is great enough that I think it is worth really thinking about this well in advance. OTOH, it would mean a lotof publicity for us and if we are well prepared it could even be a net gain. In my opinion (IANAL, etc) our responseshould be: 1) Coding around alleged patents 2) Releasing press releases saying that in keeping with our no patents policy, we have coded around patents as soon as theywere brought to our attention. 3) Look for legal allies (EFF, FSF, etc). 4) Raise funds for the legal fees of the project. But I guess most of this should be self-evident. >> OTH, has PostgreSQL cost Oracle enough, or does it threaten to cost enough, to make such a venture worthwhile? In the shortrun it would generate a lot of unsympathetic press and some support for the project. << And.... Patent litigation is pretty risky in another way too. The USPTO will issue a patent for things they have no cluewhether they are patentable. If you try to enforce a patent and lose, your patent may be either limited or even invalidatedby the courts. This creates a huge gray area where nobody knows for sure whether a patent will be enforceableuntil it is tried in court (and even then, it could be invalidated later-- see the Lamelson case involving barcodescanners, where the plaintiff argued successfully that Lamelson had invalidated their own patents by keeping themin a pending state for an unreasonable amount of time-- well after they had been enforced against others). This is whyif Oracle or another third party were to attempt such an attack, we would probably see a large number of patents beingmentioned. This means huge expenses on our part and on the plaintiff's part. But we might have the expertise availableto do some real damage to any future plaintiff if they try. Software patents in particular are so dangerous inthe US because the FUD factor is so high. All I need say is "Remember RamBus?" So any suit would also have to take into account the real risk of patent invalidation. This makes it less likely for a smallercompany to try to sue us but much more likely for a large company with a large number of patents. So if patents aregoing to be alleged, I think they would come from Oracle or even MS before some other third party. Here are a list ofpossibilities and my assessment of likelihood of being a part of an attack if such were to occur: 1) Oracle. Reasonably likely. I am sure they hold a large number of patents and might have the will to use them. 2) Microsoft. Reasonably likely but why would they want to generate publicity for stealth competitors? Long-term possibility. Mid-range, I don't see it. We are probably a pretty low-priority competitior for Microsoft and will probablystay that way for the foreseeable future. 3) IBM. Possible but unlikely. They have been trying really hard for a number of years to help deal with patent issuesand FOSS software, first via the often criticized IBM Public License and later the Apache License 2.0. I don't thinkthey want to alienate all those who believe them when they say that IBM sees Open Source as the future. 4) Individual inventor. Possible but unlikely. No possibility of large quantities of damages. High risk (in terms ofpatent invalidation). I don't see it. I guess Oracle could pay the inventor a few million to sue, but that seems prettydangerous from their perspecive too as the bad press would almost inevitably come back to them. 5) Independant patent license firms. I guess it is a possibility, but in the end, companies that mostly manufacture lawsuitsusually go broke. Why would you sue a non-profit if you were mostly trying to make a buck with the lawsuit? Best Wishes, Chris Travers Metatron Technology Consulting
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On Mon, 2005-10-17 at 12:05 -0700, Chris Travers wrote:
IANAL, but I think this category would be higher. For the simple reason that the non-profit might be viewed as low-hanging fruit and easy to pluck.
Remember, what some of these (a lot?) "patent license firms" (now that's a lot nicer than what I would have called them) try to do is get easy targets to license the patent. This makes it easier to get other companies to license the patent.
Often, the smaller targets will settle and license the patent because the cost to defend themselves is so high that it is cheaper to pay the license fees than to fight (this sounds familiar, oh yeah, protection rackets). These "firms" then use those licensees to legitimize their patent, claiming others licensing the patent "proves" their patent is enforceable. Then they target bigger and more lucrative fish.
[My jaded comments aside, I think there is a place for the US patent system to protect true invention and innovation. It's just been twisted into something -- well, I don't need to say it, you already know.]
5) Independant patent license firms. I guess it is a possibility, but in the end, companies that mostly manufacture lawsuits usually go broke. Why would you sue a non-profit if you were mostly trying to make a buck with the lawsuit?
IANAL, but I think this category would be higher. For the simple reason that the non-profit might be viewed as low-hanging fruit and easy to pluck.
Remember, what some of these (a lot?) "patent license firms" (now that's a lot nicer than what I would have called them) try to do is get easy targets to license the patent. This makes it easier to get other companies to license the patent.
Often, the smaller targets will settle and license the patent because the cost to defend themselves is so high that it is cheaper to pay the license fees than to fight (this sounds familiar, oh yeah, protection rackets). These "firms" then use those licensees to legitimize their patent, claiming others licensing the patent "proves" their patent is enforceable. Then they target bigger and more lucrative fish.
[My jaded comments aside, I think there is a place for the US patent system to protect true invention and innovation. It's just been twisted into something -- well, I don't need to say it, you already know.]
On Tue, 2005-10-18 at 13:07 -0700, Chris Travers wrote:
That's why I put the word proves in quotes when I wrote it. It doesn't prove anything. But, it does give them ammunition.
The smart ones will stay out of court, precisely for the reasons you listed. As they move up the food chain, going after larger and larger targets, you can bet one of the arguments they will throw around is that X others have already licensed this patent, making their patent seem more legitimate.
Still doesn't make them right.
snipGregory Youngblood wrote: > On Mon, 2005-10-17 at 12:05 -0700, Chris Travers wrote: > >>5) Independant patent license firms. I guess it is a possibility, but in the end, companies that mostly manufacture lawsuits usually go broke. Why would you sue a non-profit if you were mostly trying to make a buck with the lawsuit? >
> Often, the smaller targets will settle and license the patent because > the cost to defend themselves is so high that it is cheaper to pay the > license fees than to fight (this sounds familiar, oh yeah, protection > rackets). These "firms" then use those licensees to legitimize their > patent, claiming others licensing the patent "proves" their patent is > enforceable. Then they target bigger and more lucrative fish. IANAL either, but I am hard pressed to determine where such a settlement proves anything (at least in the US). Now if you go to trial and lose, then the same defenses may be unavailable to others. I.e. if the court determines that your arguments for X being prior art do not impact the invention in question, then the next defendant will probably be barred from arguing that X is prior art at least in reference to the same invention. But this cuts both ways... If the courts determine that X *is* prior art, then the patent may be limited by the courts. I.e. prior suits don't prevent new defenses which is why serial enforcement of patents is so dangerous (sooner or later, maybe someone finds a chink in the armor), but facts necessarily decided as part of one case are generally considered beyond dispute.
That's why I put the word proves in quotes when I wrote it. It doesn't prove anything. But, it does give them ammunition.
The smart ones will stay out of court, precisely for the reasons you listed. As they move up the food chain, going after larger and larger targets, you can bet one of the arguments they will throw around is that X others have already licensed this patent, making their patent seem more legitimate.
Still doesn't make them right.
Gregory Youngblood wrote: > On Mon, 2005-10-17 at 12:05 -0700, Chris Travers wrote: > >>5) Independant patent license firms. I guess it is a possibility, but in the end, companies that mostly manufacture lawsuitsusually go broke. Why would you sue a non-profit if you were mostly trying to make a buck with the lawsuit? >> >> > > IANAL, but I think this category would be higher. For the simple > reason that the non-profit might be viewed as low-hanging fruit and > easy to pluck. > > Remember, what some of these (a lot?) "patent license firms" (now > that's a lot nicer than what I would have called them) try to do is > get easy targets to license the patent. This makes it easier to get > other companies to license the patent. > > Often, the smaller targets will settle and license the patent because > the cost to defend themselves is so high that it is cheaper to pay the > license fees than to fight (this sounds familiar, oh yeah, protection > rackets). These "firms" then use those licensees to legitimize their > patent, claiming others licensing the patent "proves" their patent is > enforceable. Then they target bigger and more lucrative fish. IANAL either, but I am hard pressed to determine where such a settlement proves anything (at least in the US). Now if you go to trial and lose, then the same defenses may be unavailable to others. I.e. if the court determines that your arguments for X being prior art do not impact the invention in question, then the next defendant will probably be barred from arguing that X is prior art at least in reference to the same invention. But this cuts both ways... If the courts determine that X *is* prior art, then the patent may be limited by the courts. I.e. prior suits don't prevent new defenses which is why serial enforcement of patents is so dangerous (sooner or later, maybe someone finds a chink in the armor), but facts necessarily decided as part of one case are generally considered beyond dispute. Again, Remember RamBus? They collapsed suddenly when someone finally came up with a defense that invalidated one of their critical patents. Best Wishes, Chris Travers Metatron Technology Consulting