Everyone hates patent trolls (except, perhaps, the patent trolls' mothers). But it's easier to despise patent trolls when you either have a lot of patents, or none. What if your company were awarded a significant patent that could be used to shake down Google and the rest of the industry for corporate benefit.
Or buy food for your family?
Is it your fiduciary duty to exercise that patent? Is it a personal duty? And do you have the legal right to do so?
The first two questions are tricky, but the last one is currently being considered by the U.S. Supreme Court. Consider yourself lucky that you don't have to decide it.
Bilski and business method patents
Recently, the U.S. Supreme Court heard oral arguments in the controversial Bilski case where IBM, typically friendly to open source and innovation, backed the wrong horse. According to The Wall Street Journal's coverage of the arguments, the justices were skeptical--if not contemptuous--of the case put forward by Bilski and the proponents of business method patents.
Chief Justice John Roberts quipped that business method patents are akin to patenting the idea that "I buy low and sell high. That's my patent for maximizing wealth."
Silly when presented in this way. But perhaps silly when presented in just about any way.
Business method patents came into being 20 years ago with the Federal Circuit's State Street decision, the case that spawned Bilski. Two of the best-known technology examples of such patents are Amazon's one-click checkout and Priceline's reverse auction.
In a September blog I took IBM to the woodshed for its stance on Bilski. Big Blue filed an amicus brief (PDF) that I argued was disingenuous at best. IBM argued:
Patent protection has promoted the free sharing of source code...which has fueled the explosive growth of open source software development.
Really?!?
IBM was not alone. Novartis, the big pharmaceutical company, also filed a supporting brief.
The industry's moment of (in)decision
I think that the Bilski case is a divider of wheat from chaff, a moment that forces technology companies to take sides on a critical issue that goes to the heart of innovation in our economy.
On one side, companies such as IBM and Novartis maintain that patents should not be tied to "primitive physical technology" but should also embrace a broader range of modern business activities.
But other companies, including Google and Symantec, took the other side and filed briefs (PDF) with the Supreme Court arguing that expanded business method patents would open them up to infringement lawsuits over the "very mental processes and ideas that are the building blocks of innovation."
What would you do? LogLogic and Sponster examples...
I was reminded of this issue by an announcement today from LogLogic, a log management and security company I wrote about last year as an example of the pervasive use of embedded Linux.
LogLogic was granted a patent in October that appears to be rather sweeping in its scope, covering the collection of logs and the management of the data in those logs.
Imagine if LogLogic went "troll" with this patent....
At a minimum it could be a nuisance to its competitors and at a maximum it could possibly shake down any company that sold a product that relied on log collection (describing hundreds, if not thousands, of products on the market today).
Or how about this one? Sponster has a patent on a system for delivering contextual ads against electronic messages like e-mail, SMS, tweets, etc. Google filed for a similar patent, but over a year after Sponster, and while Sponster's patent was recently granted in October, Google's was denied. (Disclosure: I know and am friends with one of the Sponster executives.)
On the one hand, Sponster could go troll and sue just about everyone on the Web. On the other hand, I know from talking with the executives that they have no desire to do so. The fact that the company has not sued anyone in its six-plus years of existence is a clear indication of this. Sponster wants to build its business around the patent, but Google or Microsoft with their heft can squash that desire.
Should Sponster fight or capitulate? It's easy when you think of patent trolls as trolls that create no real value. But what about when they are real people and real companies like Sponster and LogLogic?
LogLogic makes its choice
LogLogic appears to have made its decision. In a company blog on Wednesday, a LogLogic executive points out the potential harm they see in a Bilski decision by the Supreme Court that would allow broader business patent methods.
LogLogic also (correctly, in my view) argues that the anti-business method lobby of Google et al "represent[s] the true innovative spirit of Silicon Valley where entrepreneurs are rewarded for risk taking and embrace the thinking of Austrian economist Joseph Schumpeter and creative destruction."
LogLogic decided to take a defensive posture with this sweeping patent rather than go troll. Who knows what Sponster will do, or should do. Presumably it worked just as hard on its technology as Google: shouldn't it get paid?
More broadly, do you agree with IBM that business methods should be upheld, or with Google that they should be crushed? What would your company decide to do? Where do you stand?
You can look at Google's growing market share in Android, its dominance in search, and elsewhere as signs that it's winning in its markets. But for me, the best indicator that Google is winning is the increasingly vitriolic attacks piled on it.
You want a piece of me?
You can always spot a winner by the bull's-eye painted on it. No one bothers to diss a loser.
Or sue them. Red Bend Software has launched what appears to be a specious patent claim against Google, alleging that Google's Chrome browser violates its patent (6,546,552) by including the Courgette algorithm, which enables Google to push compressed software updates to the browser.
As Microsoft learned years ago, success breeds patent lawsuits. Microsoft rarely sues over intellectual property infringement, but has endured hundreds of patent lawsuits, nearly all of them ultimately found worthless.
But it's not just patent trolls that are on the scent. Symbian, the one-time leader in mobile phone operating systems, has gone on the offensive, claiming Google is "evil" and fear-mongering about what Google will do with consumer data gathered with its Android software.
Is this an indication that Symbian can't compete in the market and must instead resort to FUD?
Google may ultimately be able to get out of the Red Bend lawsuit cheaply, and it's unlikely that Symbian's noise will unduly distract it. It may not end up dominating mobile, for a variety of reasons, but it's going to be a significant competitor, just as it is in search and increasingly in enterprise computing.
After all, Google is innovating in Android, as CNET reports, and generally pushing the envelope on what's possible in computing: mobile, "desktop," and cloud/server. Importantly, open source is a central strategy in each of these areas, which may be one of the things that most riles the incumbent competitors in its markets.
For Google, the increasing vehemence of the attacks on it should signal that it's doing something right. In fact, many "somethings" right.
Open-source proponents have traditionally been anti-patent, and for good reason. Patents are tough to track and can hinder the very innovation they're designed to encourage. Oddly, therefore, IBM argues that patents have fueled the growth of open source.
Patents have the potential to become a minefield for innovators. Companies like ex-Microsoft executive Nathan Myhrvold's Intellectual Ventures (IV) arguably make things worse by turning patent licensing into a standalone business, as Timothy Lee writes in a blog post:
The fundamental question we should be asking about [IV's] business strategy is how it benefits anyone other than [founder Nathan] Myhrvold and the patent bar. Remember that the standard policy argument for patents is that they incentivize beneficial research and development. Yet IV's business model is based on the opposite premise: produce no innovative products, spend minimal amounts on research and development, and make a profit by compelling firms that are producing products and investing in R&D to pay up.
Not only does this enrich Myhrvold at everyone else's expense, but it also reduces the incentive to innovate, because anyone who produces an innovative product is forced to share his profits with Intellectual Ventures. Patents are supposed to make innovation more profitable. Myhrvold is using the patent system in a way that does just the opposite.
Despite such abuses of the system, have patents been kind to open source? That's a hard argument to credibly make, but it's precisely the argument IBM makes in its amicus brief for the Bilski case (PDF).
Bilski, a U.S. federal circuit court decision now before the Supreme Court, strikes down business method patents and also seriously threatens the validity of software patents, and hence seems a curious place for IBM to state its pro-patent and pro-open-source case.
IBM argues that "patent protection has promoted the free sharing of source code...which has fueled the explosive growth of open source software development."
Here's the full context:
Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms--which has fueled the explosive growth of open source software development.
Really?
IBM's point obscures the reality of open-source development. as TechDirt points out:
The situations where a patent makes a developer more comfortable showing source code are clearly cases of proprietary software, where the developer/patent holder is worried about the software being copied. With open source software, there's no such "worry" because that's actually a feature of the system.
Patents may not be quite the Great Satan that open-source advocates sometimes suggest, but they haven't been the foundation upon which open source has been built, either. It's unclear why IBM makes this point, as few companies could claim to understand and advance open source as much as IBM.
It's particularly odd in light of the company's own statement of non-assertion of patents pledge (PDF) against open-source developers. If patents are helpful to open-source developers, why bother giving assurance that IBM won't litigate against them?
IBM makes over $1 billion each year with its patent portfolio, but this doesn't explain why it would make such a curious argument regarding open source. Anyone have ideas as to a plausible explanation?
Follow me on Twitter @mjasay.
Just how valuable are the Linux-related patents that Microsoft recently sold?
The Open Invention Network (OIN), a patent defense coalition for Linux whose members include IBM and Red Hat, trumpeted the news that it had bought 22 Linux-related patents from Allied Security Trust (AST) in a bid to protect Linux. Microsoft, which sold the patents to AST, claims the patents "weren't important," as noted in The Wall Street Journal.
Did the OIN get value or garbage?
Microsoft has long presented itself as the looming patent threat to Linux, once claiming that 235 of its patents are violated by Linux. But the AST patents, which cover 3D graphics, are apparently not among that group of core Microsoft patents allegedly violated by Linux.
If Microsoft didn't care about the patents, why should OIN?
It's a question ZDNet's Mary Jo Foley is asking, and rightly so. As CNET's Ina Fried notes, it's possible that Microsoft was looking to offload the patents to a patent troll, one that could litigate against Linux by proxy. This same strategy is apparently being used by Intellectual Ventures, a patent-holding (and trolling) firm that may be selling patents to litigious buyers to generate revenue.
OIN CEO Keith Bergelt speculates as much, insinuating that Microsoft may have "had ulterior motives" in selling to AST, a firm that has a "catch and release" policy that would see the Linux-related patents pushed back onto the open market after a year, and potentially fall into the hands of a patent troll, as eWeek reports,
But this seems like a rather klugey way for Microsoft to go after Linux. If it wanted to ensure the patents made it into the right (or wrong, depending on your point of view) hands, it could have sold the patents directly to a Microsoft-friendly patent troll. The fact that OIN wasn't allowed to directly participate in Microsoft's patent auction says little about the company's ultimate (and allegedly "ulterior") motives.
Faith is great in religion--it's not a viable business strategy.
I'm left wondering just how much protection OIN scored for Linux with the purchase of these 22 3D graphics patents. If the patents were core to Microsoft, it wouldn't have sold them for simply the off-chance that the patents might eventually find their way to a litigious patent troll. Microsoft tends to be more direct with its anti-Linux message, a fact borne out by its recent scurrilous Best Buy training FUD.
I suspect that the patents truly weren't very important to Microsoft. This doesn't mean their value to OIN is diminished, but it's probably not time to uncork the champagne at the "coup" scored at the local patent yard sale.
Follow me on Twitter @mjasay.
The infamous U.S. District Court for the Eastern District of Texas has slapped Microsoft with a permanent injunction that "prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML," according to CNET. This likely won't stop Microsoft Office from shipping, as CNET's Ina Fried writes, but the bigger question may be whether the lawsuit will reach beyond Redmond to also threaten the Open Document Format (ODF).
The lawsuit doesn't affect all of Microsoft Office, but only Word, and only the "Custom XML" functionality, as ZDNet's Mary Jo Foley highlights. Even so, you can almost hear the cries of jubilation from the open-source community, happy to see Microsoft get a taste of its own patent saber-rattling.
However, Gartner analyst Brian Prentice raises a troubling question: does the patent also affect the ODF standard?
The more I read through the patent claim the less confident I was with my initial reaction. In fact, I think this one might actually have some legs. Keep in mind is that this claim was filed back in 1994. The claim considers the existing state of the art at that time....
One thing seems clear to me - this is not a typical rubbish software patent that earns its filer a 20 year monopoly on the dead obvious. Fifteen years ago this would seem to me to have been an innovative idea....
But, if the validity of the patent is upheld then the immediate question is whether this will also impact ODF. If so, then this turns out to be a significantly more important issue and one which will crystallize the fury of the anti-patentistas. No longer will this be the source of some Schadenfreude at Microsoft's expense. This will be seen as yet another attack on open standards and open software.
It's an interesting question, one to which I don't know the answer, not having reviewed the patent in any detailed form. But it's at least a poignant reminder that the collateral damage in any patent infringement lawsuit could well extend beyond the initial target, in this case hitting the open-source world even as Microsoft is smacked around.
The current version of ODF doesn't include Custom XML-type code, as Redmond Magazine writes, but the next version will. Could this patent suit make momentary friends of Microsoft and the open-source community?
Anyone that can offer color commentary on the patent and ODF in particular?
Update: See Sean Michael Kerner's post, suggesting that two particulars (i4i is not a patent troll and i4i and Microsoft had a business relationship) suggest that the open-source world has little to fear from this suit.
Follow me on Twitter @mjasay.
Open source means different things to different people. It can be a software development methodology, a distribution technique, or a marketing gimmick. Could it also be a way to minimize patent infringement damages?
Brian Prentice, a research vice president with Gartner's Emerging Trends and Technologies Group, speculates that it just might be. Google has been actively developing open-source alternatives to leading proprietary products, like Google Wave to compete with Microsoft Outlook and SharePoint. As Prentice indicates, Google has also been publicly advocating passage of the Patent Reform Act of 2009, which might have a lot to do with its open-source strategy.
Here's why.
The proposed legislation alters the way damages are calculated in infringement suits to be "calculated as the price of licensing a 'similar non-infringing substitute in the relative market.'" Now if that alternative is a free, open-source piece of software, then damages drop to zero, as Prentice notes:
Does that mean that free open source products can now be considered substitutes in a relative market? I've been trying to play the scenarios out in my head. If Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions? Once Google Wave is shipping, can other organizations infringe on patents Microsoft holds relative to Exchange comfortable in the knowledge that Wave creates a zero dollar relative market value for collaboration?
This is incredibly insightful on Prentice's part, and amazingly shrewd if, in fact, Google is playing this game. It takes open-source advocacy to an entirely new, Sun T'zu-esque plane.
Martin Fink of Hewlett-Packard first started talking about the value of using open source to commoditize a competitor's core offering through open source back in his 2002 book "The Business and Economics of Open Source." But Prentice's idea takes Fink's argument and runs with it...at Usain Bolt speeds.
If true, The Register's question--"Is Google spending $106.5m to open source a codec?"--calls up a different response than the author of that article gives. Maybe $106 million is cheap compared to the cost of getting hit with video compression patent suits (from Microsoft, Apple, and others), if Google open source's On2's video compression codecs.
Google contributes to open source for a variety of reasons, not the least reason being that it recognizes open source is an efficient way to create community around its products. But perhaps Google has this more subtle, and sophisticated, reason as well?
Brilliant.
Follow me on Twitter @mjasay.
Red Hat's legal team has given a half-hearted pat on the back to Microsoft's open sourcing of Linux device drivers this week.
The observation of the Bible's James came to mind: "Out of the same mouth proceedeth blessing and cursing."
But it was Red Hat's parting shot on patents that I found bewildering, not to mention irresponsible:
Over the years, the individual and corporate members of the community have through formal and informal steps made clear that they will not pursue or threaten patent litigation in the Linux area. Patent threats are irreconcilable with the norms and values that are at the heart of Linux. To win the respect and trust of the Linux community, Microsoft should unequivocally disavow such conduct and pledge that its patents will never be used against Linux or other open source developers and users.
First of all, I'm not sure this is true. I don't remember IBM, Hewlett-Packard, Oracle, or even Red Hat declaring once and for all that they will never, ever sue open-source developers over patent infringements.
Second of all, why would they? Why would you ever conclusively close the door on actions that might well be required to legitimately defend your interests? This seems like the height of fiduciary irresponsibility in the hopes of scoring political points.
What if I were to rip off every line of code Red Hat writes tomorrow? What if I persisted in doing so, willfully violating its patents? Or what if Oracle did? Has Red Hat essentially given me a writ of indulgence to allow me or Oracle to do so?
No, it hasn't. And no, it shouldn't. The spirit of Red Hat's comment--compete on the basis of technology and execution, not patent threats--is absolutely correct. But the course of action suggested by Red Hat's legal team for Microsoft is a double standard that no company or individual should follow.
Follow me on Twitter @mjasay.
Microsoft has divided opinion in the open-source world for years with its love/mostly hate relationship with open source. While the company has seemingly warmed up to open source in the past two years, its continued patent club has hung over projects like Linux. On Monday Microsoft sheathed the club for the open-source Mono project, but arguably needs to go much further to justify celebrations.
Mono was open source, in other words, but only usable for a select class of developer.
It therefore surprised some when Canonical, the company behind the Ubuntu Linux distribution and an ardent opponent of software patents, decided to include Mono in its standard distribution. The company publicly defended its decision and, in my opinion, was right to do so. It's simply a matter of pragmatism, as John Mark Walker points out because "if we ditched all free software for possible patent violations, we'd have nothing left."
Now Microsoft has ostensibly made everything easier for Ubuntu and the rest of the Mono-using world, by pledging not to assert its patents against Mono developers, distributors, and users (i.e., those that implement C# and CLI, ECMA specifications 334 and 335, as Mono does).
While Mon's chief developer Miguel de Icaza celebrated Microsoft's decision ("I am overflowing with joy right now"), Dana Blankenhorn asks if Microsoft's Mono moment will end up fracturing the open-source movement (or, at least, the Free Software Foundation and Ubuntu). Meanwhile, Sean Michael Kerner queries whether Mono will benefit from Microsoft's promise not to be Microsoft and threaten the world with patent-infringement suits.
Ultimately, however, the real question is, "Who cares?" As IBM's Bob Sutor, vice president of Linux and Open Source, suggests, Mono is small change compared to Linux:
With Microsoft making promises about Mono, they should pledge that they will not assert their necessary patents against the Linux kernel.
Bingo. Mono is small change. Linux is big money. If Microsoft can overcome its allergic reaction to Linux, we might actually be making progress.
Microsoft's Mono decision is an example of Microsoft discovering it needn't squash the small child it has already invited to play in its sandbox. Extending its "Community Promise" to Linux would demonstrate that the company is committed to joining the 21st Century and competing on the basis of its technical merits against Linux, rather than its patent portfolio.
The U.S. patent system being as messy as it is, it's certain that Linux violates Microsoft patents...just as it's certain Microsoft violates Linux-related patents held by IBM and other Linux proponents. It's time to call a cease-fire and get back to delivering value, not intellectual property promises and threats, to customers.
Update 9:17 a.m. PDT: I inadvertently conflated Microsoft's Community Promise to extending to Mono, rather than the ECMA standards 334 and 335.
Carlo Daffara, an open-source consultant, rightly notes that Microsoft's patent promise is not directly on Mono, but rather on these ECMA standards, which leaves "most of Mono...encumbered as before (WinForms, ADO.NET, ...)."
Mono founder Miguel de Icaza recognizes this and plans to deal with it:
Astute readers will point out that Mono contains much more than the ECMA standards, and they will be correct. In the next few months we will be working towards splitting the jumbo Mono source code that includes ECMA + A lot more into two separate source code distributions. One will be ECMA, the other will contain our implementation of ASP.NET, ADO.NET, Winforms and others.
It's a useful distinction, but doesn't detract from the original premise (if anything, it amplifies it): Microsoft has taken baby steps toward competing with open-source projects like Mono and Linux on technical merit, but it needs to do far more. Granting its "Promise" to Linux would be a big step in the right direction.
Follow me on Twitter @mjasay.
Ever since Microsoft dropped its bombshell on Linux, claiming that the open-source operating system violates 235 of its patents, the Linux community has responded with a cogent counterargument: "If we're, in fact, infringing, point out the infringements and we'll simply code around your patents."
With Microsoft's lawsuit against GPS device manufacturer TomTom, Microsoft gave the community what it wanted, which has now resulted in the Linux community coding around Microsoft's two FAT file-system patent claims against Linux.
Two down, 233 more to go?
In 2008, Microsoft filed suit against TomTom for patent infringement related to GPS technology and its FAT file-system patents, allegedly infringed by TomTom's use of Linux. The two parties eventually settled, but Microsoft gave enough of a clue as to its patent claims that the Red Hat-sponsored Open Invention Network and others set off to sift through the merits of Microsoft's patents and, if possible, code around them.
As Andrew Tridgell recently explained to the Linux kernel mailing list, it would appear that the Linux community has accomplished exactly that, providing a workaround to Microsoft's patent claims.
The reasons are somewhat technical, but the approach seems to pass muster, as Ars Technica reports:
The Linux Foundation arranged for the patch to undergo extensive review by patent lawyers. They are confident that the patch will effectively evade the common namespace method described by Microsoft's patents. It will also function properly in virtually all cases. The only situation in which it will be problematic is when the data on the filesystem is accessed from old versions of DOS or Windows that still require the 8.3 filenames. Tridgell believes that such a scenario is rare enough that it will not impact a significant number of users. Those who require compatibility with those older versions of DOS or Windows can use the Linux "msdos" filesystem, which enforces 8.3 names and doesn't use Microsoft's patented dual-naming convention.
In early 2009, open-source luminary Larry Augustin urged the Linux community to "get the FAT out." While Tridgell's approach doesn't quite do this, it does appear to obviate Microsoft's patent claims.
This should make Linux users happy. Whether it will make Microsoft happy to see how trivial it is to code around its patent claims remains to be seen. That's the problem with launching nuclear marketing attacks against the legal integrity of open-source code: given enough eyeballs, all patent claims are shallow.
Follow me on Twitter @mjasay.
For those of us who believe that patents stifle innovation, this week brings good news: patent filings are down, as PatentlyO reports. After years of steadily increasing, U.S. patent filings have dropped, perhaps reflecting the bad economy.
Or perhaps an increase in common sense? Nah....
(Credit:
U.S. Patent & Trademark Office (via PatentlyO))
While the PatentlyO blog suggests this is a "crisis," I'm with TechDirt: the only crisis is that it has taken so long for patent filings to decline:
Considering the large number of bad patents that got through over the years, and the resulting flood of applications from others hoping to strike it rich by gaining monopolies on obvious ideas, it should be seen as a good thing that applications are finally dropping.
If anything, we should be wondering why they're not dropping more. Patents were supposed to be given out in the rarest of circumstances, when other incentives weren't enough. Somewhere along the way, those who controlled the patent system seemed to forget this and lose their way.
Let's hope it continues. Patents have their role in the intellectual property regime, but their impact on the software industry is controversial at best, and destructive at worst.
Follow me on Twitter @mjasay.
