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Seven years ago Lee Patch’s twin son and daughter were born, and so was Sun Microsystems Inc.’s war with Microsoft Corp. Patch, who is Sun’s senior vice president-legal affairs, has been the lead lawyer in the fight. At one point he commanded more than 100 lawyers in the litigation, which spanned antitrust, IP, and contract issues, and was fought in California and Europe. This year, when the two companies finally called a truce, Patch — along with Mark Tollinger, another Sun vice president — was at the settlement table. The settlement talks ended with a $2 billion agreement at 4 a.m. on April 2, after nine months of secret negotiations in California, Washington State and other, undisclosed locations. Under the terms of the deal, Microsoft agreed to pay Sun $900 million to settle patent issues, $800 million to settle the antitrust case, and another $350 million in patent royalties. If either one of the companies uses certain aspects of the other’s technology in the future, royalties will be paid for that use. The first settlement meeting took place in 2003 at Sun’s Menlo Park, Calif., headquarters over the July 4 holiday, when the company was closed. “It was like being in the twilight zone when Bill [Gates] and Steve [Ballmer] walked through the door. We had been so antagonistic for such a long time,” Patch says. It was like the first meeting between John Kennedy and Nikita Khrushchev, he says, identifying himself with Kennedy. The meeting was so hush-hush that Sun’s security guards were sent away, and Patch and his team had to let the Microsoft negotiators into the building. (The two principal Microsoft negotiators were GC Brad Smith and Microsoft’s corporate vice president, Henry Vigil.) The battle between the two technology giants dates back to a 1996 licensing agreement. At the time, Sun was eager to disseminate its Java technology, which makes it possible for a programmer to write a software program that can run on a wide variety of computers and devices. “We refer to it as ‘write once, run everywhere,’ says Patch. “We wanted it to be ubiquitous.” Usually when software is licensed, its source code is kept secret. To get Java out into the market, Sun revealed its code. The problem with that strategy, Patch says, is that when anyone can see your code, “they can bring patent infringement charges against every little thing you have inside.” To get around this, Patch, who was then vice president and general counsel for Sun Software, and his colleagues required licensees to agree not to sue Sun for infringement. Licensees also agreed to keep their versions of Java compatible with all others. But Microsoft created a noncompatible Java version, and Sun sued the company in San Jose federal court in 1997, alleging trademark infringement, breach of contract, and unfair competition. In 1998 Sun raised the issue of Microsoft’s “anticompetitive” behavior with the European Commission. The California case settled in 2001, but a year later Sun sued Microsoft again in the same court, this time in a private antitrust suit. Sun claimed that Microsoft’s Windows XP operating system violated contract agreements to ship software with a fully compatible Java implementation. At the same time, state and federal authorities were pursuing Microsoft in separate antitrust actions. For the first suit, Patch turned to partner Rusty Day of Cupertino, Calif.’s Day Casebeer Madrid & Batchelder. But the litigation would outgrow the resources of that 30-lawyer firm. Patch hired other firms to work under Day’s leadership, including the New York office of Clifford Chance; Chicago’s Sonnenschein, Nath & Rosenthal; Baltimore’s Tydings & Rosenberg; and San Francisco’s Townsend and Townsend and Crew. For the European antitrust action, Patch retained Philadelphia’s Morgan, Lewis & Bockius and London’s Allen & Overy. The cases were rigorously organized with “clear lines of responsibility” for each firm and lawyer, Patch says. He met with the various groups of lawyers regularly. And he set up a schedule that listed what needed to be done at any time, and the form in which each task was to be completed. This paper dashboard, he says, “allowed us to see at a glance where each team working on the case had progressed, where things were moving forward, and where things were stalled.” Organizing a group of lawyers turned out to be preferable to dealing with high school kids. Patch spent five years teaching high school physics before heading to law school at Pittsburgh’s Duquesne University. He finished in 1981, worked for two years at Pittsburgh’s Reed Smith Saw & McClay, and then went in-house at Schlumberger Limited’s New York headquarters. In 1986 Patch moved to California to work for National Semiconductor Corp., where he was made chief patent counsel. Eventually, he says, he grew tired of the boom-and-bust cycle in the chip industry. Patch says that at one point National Semiconductor couldn’t afford gardeners, so it brought in a goat to trim the grass. In 1991 Patch became Sun’s first IP lawyer, and found the company’s IP house divided. “The hardware guys took to IP immediately, but the software guys were very resistant,” he says. Many of the software engineers “were — and still are — proponents of open-source software. There’s a philosophy approaching religion about how software ought not to be property,” he says. The company is still of the view that interfaces should be open and interoperable, but nonetheless has a portfolio of more than 3,800 patents, including many for software. Life without Microsoft litigation “feels strange,” Patch says, but another case is simmering. Kodak sued Sun in February 2002, claiming that Java infringes patents for its document management technology. An early Java licensee, Kodak “is biting the hand that feeds it,” says Patch. Again he’s turned to Day to lead the litigation. During the Microsoft litigation, Patch was often away from his Redwood City, Calif., home. Now that it’s finished, he’s hoping to spend more time there with his twins. The Microsoft case may be over, but Patch’s parenting journey has only just begun.

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