The most credible explanation I've seen so far as to why HP fired Mark Hurd last month, even after it determined that he had not actually engaged in sexual harassment, was that the Mark Hurd help lead the investigation into the board over the infamous pretexting scandal, and that the whole story about the supposed harassment and fudged expense reports were just an excuse to get rid of a CEO the board didn't like -- even as he was performing tremendously well.
If that explanation is actually true, it also helps explain the news that HP is now going to sue Hurd for accepting his new job as President at Oracle. As HP's lawyers absolutely must know, California has a law that the courts have interpreted quite broadly, that says noncompete agreements are not enforceable, because you cannot deny a person the right to earn a living. HP is (weakly) trying to get around this by claiming the job shift would violate "confidentiality agreements" and trade secrets, but there's almost no chance a court buys that. The lawsuit seems like a non-starter. In fact, the only reason for filing the lawsuit really seems to be an absolute pest. It's an incredibly childish move by a company that should know better.
There's a famous story of how IBM sued Sun for patent infringement in the early days. The patent claims from IBM were ridiculous, and Sun's engineers pointed that out to IBM's lawyers. In response, the men in blue made the famous statement:
"OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"
In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.
Of course, it's easy to point out that the folks named on the patents are claiming themselves that the patents were part of a joke to see how bad the patent office is. But, you can take it to another level altogether, and have folks who actually know quite a bit about the technology go through the patents one by one and explain why each of them is a total joke.
This is yet another in an exceptionally long line of examples of what a complete mess our patent system has become. I'm curious if the patent system supporters out there can come up with some sort of way to defend the patent system in this particular situation.
from the real-companies-innovate,-not-litigate dept
Over the past few years, Sun has been one of the more outspoken companies against abusing the patent system, with former CEO Jonathan Schwartz explaining that real companies innovate, not litigate. However, Sun and its patents are now owned by Oracle, and apparently Larry Ellison feels otherwise. Oracle is now suing Google for patent infringement, using a bunch of patents that Sun owns around Java, claiming that Google's Android implementation of Java is done without a license. This is a bit surprising, really, as big Silicon Valley tech companies don't often get into patent battles with each other -- and, historically, when they do launch such patent attacks, it's usually a sign of something bigger being wrong with the company. Anyway, if you're interested, the patents in question are 6,125,447, 6,192,476, 5,966,702, 7,426,720, RE38,104, 6,910,205 and 6,061,520. And here's the filing:
Interesting to see super lawyer David Boies on this one. His career really has gone downhill, hasn't it? From once leading the government's antitrust case against Microsoft to representing SCO's ridiculous lawsuits and now being involved in yet another silly patent fight?
Either way it will be interesting to see Google's response. Unlike many big tech companies, Google hasn't warehoused patents at quite the same rate. The company certainly does regularly apply for and get patents, but if you watch the numbers, they're much lower than other tech companies, and I can't recall Google ever making a patent claim against another company. So it'll be interesting if Google responds with the standard response to a patent lawsuit between two big tech companies: which is to countersue over other patents, effectively launching the nuclear counterstrike. My guess is that the more likely response is that Google will eventually just pay off Oracle to make this lawsuit go away.
Rik alerts us to a recent Wired Magazine article that goes through Larry Ellison's failed attempts at building a cheap computer (the network computer -- or NC) that would mainly be used for internet access. That history is pretty well known. Ellison -- in large part inspired by jealousy of Bill Gates -- declared that the PC was dead, and in its place people would prefer to use a stripped down computer with everything on the internet instead. It got a ton of buzz, and lots of people expressed interest. But the product was a flop. A massive flop. And yet... here we are today, and more and more applications are online only, and the success of cheap netbooks have more than matched some of the original vision of the network computer. As the article explains:
We tend to think of technology as a steady march, a progression of increasingly better mousetraps that succeed based on their merits. But in the end, evolution may provide a better model for how technological battles are won. One mutation does not, by itself, define progress. Instead, it creates another potential path for development, sparking additional changes and improvements until one finally breaks through and establishes a new organism.
That is the process of innovation. And yet, we tend to only celebrate the invention -- the first idea -- rather than all the evolutionary process that it takes to make something successful. Things like patents tend to block that evolutionary process by limiting the pace at which those mutations and developments can occur. They slow down innovation, rather than letting it flow, by putting an arbitrary wall around each new step, rather than letting the evolution proceed uninhibited. We may get the innovation eventually, but at a much slower pace than we might otherwise.
Brian points us to the news of yet another questionable patent lawsuit filed by yet another shell company, yet again in Eastern Texas against a ton of software companies. The patent in question (5,222,134) is for a "secure system for activating personal computer software at remote locations," and was originally filed back in 1991 and granted in 1993 -- meaning that the patent is actually nearing end of life. Odd, then, that it was suddenly noticed that all these companies were infringing. The lawsuit is filed by a shell company called BetaNet, and no one seems willing to speak. The lawyers representing BetaNet won't say who is behind the company, or how they even got the patent. This is typical. Many of these types of lawsuits are filed by shell companies to hide who is actually behind them. As for the defendants, here's the list:
Obviously, none of those companies could have come up with ways to remotely activate software without this patent (yes, that's sarcasm). As the Register notes in the link above, even some of the software products listed as violating this patent don't seem to involve activation at all, raising serious questions about how they could possibly violate this patent. This sounds like yet another case of someone having read the book Rembrandt's in the Attic and deciding to go trolling for companies to sue with a meaningless patent.
The New York Times has a great write-up of the continued rapid growth of Red Hat. Despite the looming recession, Red Hat is predicting 30 percent revenue growth in the coming year, to more than half a billion dollars. For a few years, Mike has been talking about how to make money while giving away infinite goods, and Red Hat could probably be the poster child for his argument. Despite the fact that virtually all of its "products" are available for free on the Internet, Red Hat is still convincing companies to pay it hundreds of millions of dollars. Of course, the reason this works is that Red Hat's product isn't its operating system or other software. Red Hat's product is access to the time and expertise of its employees, and to Red Hat's extensive ecosystem of developers, hardware vendors, and others who have built atop the Red Hat platform. Because Red Hat stands at the center of this tight-knit web of relationships, their employees are better-positioned than anyone else to quickly solve customer problems. And it turns out that companies are willing to pay hundreds of millions of dollars for that assistance.
The most interesting part of the article is where it talks about Oracle's effort to undercut Red Hat by offering the same software at a lower cost. Apparently, as we predicted, it hasn't been going too well. And it's not too hard to see why: Larry Ellison doesn't seem to understand Red Hat's business model. What Red Hat is selling isn't software, but support. And the value of a support contract is a function of the expertise of the company providing it. Not only does Red Hat have a number of key Red Hat developers on staff, but it also has a ton of strong working relationships with developers and vendors elsewhere in the Linux community. That means that if a customer encounters a bug in its Red Hat Enterprise Linux installation, Red Hat will either have an engineer on staff who can fix it, or it will have a strong relationship with the outside developer who developed that piece of software or the firm that manufactured the hardware. That makes it more likely that it will be able to address the issue quickly and incorporate the fix into the software for future releases.
Oracle has made comparatively little effort to either hire Linux developers or foster strong relationships with the broader free software community. As a result, Oracle isn't able to provide the same kind of value that Red Hat can. Yes, Oracle tech support can fix straightforward problems, but if they need to make changes to the code, they'll often need to go to a Red Hat engineer for help getting it fixed. And not surprisingly, most customers would rather cut out the middleman and go to Red Hat directly, even if it costs a little more.
Something must be in the air today, as two big acquisitions were announced this morning. First, Oracle announced that it will fork over $8.5 billion for middleware maker, BEA. BEA has been on the radar since last October, when BEA rejected Oracle's unsolicited $6.7 billion offer. Carl Icahn, BEA's largest shareholder, had initially agreed with BEA's counter offer of $21 per share, but then later started pushing publicly for the sale. Oracle held fast to its offer of $17 per share, so it's surprising to see that they were able to agree on $19.375 per share, especially when there were seemingly no other bidders. These acquisitions continue an overall trend of consolidation in the enterprise software market, kicked off by Oracle's 2004 acquisition of PeopleSoft. Since then, Oracle has spent about $110 billion in its acquisition of about 30 companies. Oracle is in a battle with German software giant, SAP, who is also knee deep in the land grab with its recently successful $6.7 billion acquisition for Business Objects. Meanwhile, Sun will spend $1 billion for open source database maker, MySql, making a strong play in the $15 billion enterprise database market. This deal makes sense for Sun, who has been building up its stable of open source products. That said, when will the speculation begin for an Oracle-Sun merger? Both hate Microsoft deeply, and both have been trying to expand beyond their core markets. And, MySql even rejected Oracle's acquisition offer back in 2006. At some point, someone's going to think it makes sense for the two to combine.
Despite having publicly pushed BEA to sell itself, Carl Icahn's initial response to Oracle's takeover attempt was to say that the offer was too low at $17 per share. BEA itself responded by counteroffering at $21 per share. However, Oracle stood fast and said that since there didn't appear to be any competition, it saw no reason to raise the bid. It also said that the $17 offer would expire Sunday night. Of course, seeing as it's now Monday, the offer has, indeed, expired. Yet, Carl Icahn isn't happy. He's now demanding that BEA put the $17 offer to a shareholder vote and is threatening to sue over it. Perhaps it's just me, but this feels like one of those situations in a bad movie or TV show where two sides are negotiating, and even though one side has instructed everyone to stand firm and play hard to get, as soon as the other side stands firm itself, one guy in the corner gives in and says "take the deal guys! take the deal!" You can almost hear the sighs of exasperation from BEA's board members muttering under their breath and trying to kick Icahn to stay quiet for a little longer to see if Oracle comes back again with another bid.
You didn't think that Larry Ellison would let SAP keep the headlines very long for moving to buy Business Objects did you? Just a couple days after that news broke, Ellison made an unsolicited bid to buy BEA. BEA has rejected the offer, saying that it's too low -- and responding in a rather aggressive manner. Of course, this might sound like deja vu. Oracle made an unsolicited bid for PeopleSoft four years ago (days after PeopleSoft announced it was buying JD Edwards), which the company spurned leading to a protracted legal fight that eventually resulted in Oracle winning, and Ellison's antagonists getting shuntedaside. That took 18 months. How long do you think this one will take? In the meantime, the lesson seems clear. When two Oracle competitors announce a multi-billion dollar deal, give it two or three days before Oracle will respond with its own (unsolicited) multi-billion dollar acquisition attempt.