Microsoft, HP, IBM safe from Kodak software patent

A verdict on a patent lawsuit against Sun Microsystems could potentially have a wide-ranging impact on the computer industry.

A verdict on a patent lawsuit against Sun Microsystems could potentially have a wide-ranging impact on the computer industry.

However, the ruling appears unlikely to affect three of the world's largest IT companies, which have licensed the technology in question. The patents' owner, Eastman Kodak, confirmed that Hewlett-Packard, IBM and Microsoft are licensees of the software patents in question.

A federal jury in New York ruled that Sun's Java technology violated several Kodak patents, setting the stage for a damages ruling against Sun that could cost the computer maker as much as $1.06bn (£593m), which is the amount being sought by Kodak.

The ruling immediately raised questions about whether Kodak's patent claims could affect other IT suppliers.

Some of Kodak's patents are so broadly stated that they could possibly cover technologies as varied as the Windows operating system, the Microsoft .Net platform, or even IBM's DB2 database, said Jonathan Eunice, an analyst with Illuminata.

Kodak's patents, developed by Wang Laboratories' imaging software unit before it was purchased by Kodak in 1997, essentially cover a technique for allowing two pieces of software to agree how to interoperate - a key concept in object-oriented programming that dates back before the patents were filed to the Simula computer language, created in the 1960s, Eunice said.

"This is one of the things when you hit your head and say how can this possibly be valid," he said. "If Java does these things and infringes, then what doesn't."

Java developer Adam Baker agreed with Eunice that the techniques covered in Kodak's patents were developed years before the patents themselves were issued.

"I'd be surprised if either via the appeals process or a separate application to the patent office, the [patents don't] get rejected although these things are never certain," said Baker, a senior consultant engineer in the UK, who asked that his employer's name not be published.

"I think some serious overhaul of the patents system is required to avoid patents on trivial intentions, which would probably stop most, if not all, software patents," Baker said in an interview via instant messaging.

Though industry analysts like Eunice had initially speculated that Microsoft could be vulnerable to a similar lawsuit over the techniques used by its .Net platform, that scenario now does not appear to be likely. Microsoft, IBM and HP are all licensees of the patents involved in the Sun litigation, said Jim Blamphin, a spokesman for Kodak.

The patents in question are US Patent & Trademark Office patents numbered 5226161, 5206951, and 5421012, Blamphin said.

He declined to comment on any plans for future litigation, or whether Kodak was actually using the patented technologies in question. "We're just not talking about it now because it is still a matter under litigation," he said.

Kodak did release a short statement about the case, which said that the company was pleased that the court had validated Kodak's intellectual property rights.

Sun issued a statement saying it was "disappointed with the federal jury's decision," and that it was examining options as the jury begins the "liability phase" of the trial, where it will consider Kodak's billion-dollar damage request.

One likely outcome would be for Sun to join HP, IBM, and Microsoft and simply license the technology, said Jeffrey Neuberger, a partner with Brown Raysman Millstein Felder & Steiner. "Once the jury's verdict is in, more often than not the case is ultimately settled with the jury's verdict being a factor in the settlement," he said.

A second option would be an appeal of the ruling, which would stand a good chance of being overturned, according to Dan Ravicher, executive director of The Public Patent Foundation.

Software patent case decisions are reversed "about half the time" in appellate court, he said. "In the patent world, the chance of reversals are so high, that having a trial verdict doesn't leave you with the ability to predict the outcome of a case."

HP, IBM, and Microsoft were unable to comment on this story by press time.

Robert McMillan writes for IDG News Service
Infoworld's Paul Krill contributed to this story

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