Bob Zeidman is the president and founder of Zeidman Consulting, and he is also the president and founder of Software Analysis and Forensic Engineering Corporation. Zeidman is a software expert that I have known for several years and in the wake of the Supreme Court’s decision in Alice v. CLS Bank we talked on the record about the decision, software in general and writing patent applications. What follows is part 3 of our 3 part conversation.
In this final installment we spend time talking about the problems associated with creating software that actually works. For something that Judges and mathematicians seem to say is so trivial software sure doesn’t work nearly as well as it should. Copied code cobbled together leads to broken systems, and programmers simply throw code up without proper vetting and let consumers find the bugs. Sure doesn’t sound like it is all that trivial to me, but then again, I’m not an ivy league educated Supreme Court Justice who is so computer illiterate that I don’t use e-mail.
In the patent world, Musk has been creating some waves in his role as CEO of Tesla Motors. In a self-authored blog post published on the official Tesla Motors blog, Musk announced that the company was trying to make the company ‘open source’ by allowing other people to infringe on their patent portfolio with the supposed intent of encouraging the development of electric vehicle technologies. Interestingly to us, his comments in the post, titled “All Our Patent Are Belong To You” and published on June 12, explain: ” Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” But who is to decide if one is acting in “good faith”?
The emergence of mobile computing as a technology platform has been a game changing development in many ways. The ability to be connected anywhere and to have real time information at our finger tips has transformed the way we do business and live our lives. As this computing paradigm has gained mass market acceptance we’ve witnessed a series of patent battles among firms vying for their share of this lucrative market. These so-called smart phone patent wars have in turn motivated patent system critics to vociferously decry the system as an impediment to innovation, which must be eliminated or radically overhauled. Defenders of the system respond that patent battles are a characteristic of market competitionoccurring with other breakthrough innovations throughout our history, and that patents address the need to protect innovations to encourage investment in innovation.
Despite all the chatter however, there is something that we have not heard in the discussions about these smart phone patent wars. The debate seems to have focused on patents and the patent system and it has ignored the fact that this current patent battle is really a battle between three competing business models advanced by the three highly competitive mobile OS providers and members of their ecosystems. Apple is pursuing a fully proprietary business model where mobile OS and mobile hardware are proprietary to Apple. This is consistent with Apple’s prior business model in traditional computing which has worked quite well for them. Similarly Microsoft is advancing a business model much like its successful traditional computing business model with a proprietary OS and an “open” hardware platform that allows third party handset makers to provide phones running the Windows mobile OS. Finally, Google is advancing an “all open” model in which it uses Android, an open source mobile OS and an open hardware approach.
Qualcomm Incorporated (NASDAQ: QCOM), a developer and innovator of advanced wireless technologies, products and services, announced last week that it plans to modify its corporate structure. The corporate structure changes are being implemented, among other reasons, in order to enhance Qualcomm’s ability to quickly deliver products to its customers, while further protecting and insulating its valuable patent portfolio from any claims resulting from actions and activities by portions of the company other than the Qualcomm Technology Licensing Division (QTL). According to the company this is not a restructuring in anticipate of spinning off either the QTL or QCT business, nor is this change in response to any third party actions or claims.
Qualcomm is indeed an innovator of note, as well as an aggressive filer of patent applications worldwide. For 2011, Qualcomm ranked as the 6th most prolific filer of international patent applications filed under the auspices of the Patent Cooperation Treaty (PCT). Qualcomm filed some 1,494 international patent applications in 2011. See International Patent & Trademark Filings Set New Record in 2011. For 2010, Qualcomm ranked 37th overall in terms of the number of U.S. patents obtained, receiving 772 according to the Intellectual Property Owners Association. See Top 300 Organizations Granted U.S. Patents in 2010 (page 2).
Earlier today on the Twitter blog the company announced that later this year it will implement what they are calling the “Innovators Patent Agreement,” which they claim will ensure that patents are only used for defensive purposes. Without any evidence Twitter claims that software patents impede innovation. Those familiar with the anti-patent software community well know that their claims that patents impede innovation are always without any evidence. All of the objective evidence points directly to the opposite conclusion, but anti-patent forces can’t be troubled with facts and reality. But that isn’t the worst part! Twitter seems to be attempting to mislead patentees into donating patent rights that can at Twitter’s discretion be used offensively if Twitter feels threatened.
Before moving forward to address the Twitter Patent Scheme, allow me to dispense with the nonsense that patents of any kind impede innovation. For those who do concern themselves with facts and reality I invite you to read:
The search for innovative ideas has never been easy, but the advent of crowdsourcing technologies and powerful players willing to embrace new methodologies seems to be paying dividends. Rather than rely on traditional innovation that comes from one individual or a small group of individuals or those working for or with a single entity or as part of a joint venture, crowdsourcing technologies take problems to millions of people and capture the most creative solutions, allowing them to be pursued and developed. “Opening up the conversation and searching for solutions among a broad, but qualified, audience has allowed us to find unique, innovative ideas in a short period of time,” said Matthew Bishop, U.S. business editor and New York bureau chief for The Economist.
Indeed, just earlier today The Economist andInnoCentive, Inc. announced the winner of the Human Potential Index Challenge. Corrine Le Buhan, an IP and technology strategy consultant and valuation analyst from Lausanne, Switzerland, has won the Challenge, which was looking for new and creative metrics or indices that draw attention to an important societal trend. Le Buhan’s solution proposed measurement of creativity and knowledge sharing via a “creative sharing” impact, described as the number of people reached by an original creative work as the creative work is spread, and possibly enriched, through further peer-to-peer interaction. This measurement could be used to compare various creative works and their impact on human development.
At least initially, President Obama was keenly interested in exploring how the United States government could use open source software rather than rely on proprietary software. President Obama was so interested in pursuing open source software solutions that on his second day in Office he asked Scott McNealy, a co-founder of Sun Microsystems, to lead his open source charge. In fact, President Obama reportedly asked McNealy to prepare a report on how the federal government could employ open source software, but as yet, some 26 months later there has been no mention of the report or across the board government adoption of open source software.
Open source advocates praised the fact that President Obama wanted to transition the U.S. government away from proprietary solutions and into open source, but now that the report has seemingly stalled and the White House has done little more than release open source Drupal code, what does the open source community have to show?
Erik Iverson is Associate General Counsel with the Bill & Melinda Gates Foundation, working exclusively with Foundation’s Global Health initiate. Mr. Iverson works with grantees in the development of intellectual property management plans, collaboration agreements and global access strategies with respect to the health solutions being funded by the Foundation. On Thursday, April 14, 2011, he will be the keynote speaker at the BIO IP Counsels Committee Conference, which will be held in Seattle, Washington from April 13-15, 2011. Mr. Iverson’s presentation at the BIO Conference is titled: “The Business Case for International Humanitarian Approaches to IP Management and Collaborations.” Several of my contacts at the Biotechnology Industry Organization (BIO) graciously put me in touch with Inverson and facilitated the coordination of an interview. The transcript of part 1 of the interview appears below.
In a nutshell, the Bill & Melinda Gates Foundation is dedicated to bringing innovations in health, development, and learning to the global community. According to the Gates Foundation Global Health Program webpage the Global Health Program “harnesses advances in science and technology to save lives in poor countries.” The page goes on to explain: ” Where proven tools exist, we support sustainable ways to improve their delivery. Where they don’t, we invest in research and development of new interventions, such as vaccines, drugs, and diagnostics.” During our conversation Iverson and I talked about how the Gates Foundation seeks to incentivize innovators, as well as foster and respect intellectual property rights while at the same time engaging in what by its very nature is a humanitarian effort.
Without further ado, my part 1 of my interview with Erik Iverson.
It is impossible to search for technology related news online anymore without being inundated with the days wave of open source news stories that are seemingly proliferating faster than a human engineered bacterium, which by the way is patentable subject matter in the United States. In any event, “open source” has become the new “cyberspace” or “technological age” or even “telecommunications.” All of these terms are certainly understood by every reader, but part of the beauty of the term is that it can mean all things to all people, without ever really conveying a standardized meaning that everyone can agree with; much like the term “compassionate conservative,” which was so frequently used by the Bush Administration. What is a “compassionate conservative”? I really have no idea, but it sounds like a good thing and something to aspire to! After all, how could being a compassionate anything be bad?
So what does “open source” mean? The term is nebulous at best and confusing at worst. The term, however, has undeniably become associated with the easy to understand but always misleading term – “free.” Certainly everyone knows the meaning of “free,” a term so universally understood that men (who are from Mars) and women (who are from Venus) both accept the term as meaning the very same thing. Even children understand the meaning of “free,” which leads to a plurality of interesting ironies.
Just this week I had the opportunity to consult with a client that is in the process of creating unique software that is, at least in my opinion, patentable over the prior art. We were chatting over the telephone when he explained that the developer he hired was using certain open source code to supplement the original code being written. Not wanting to scare my client needlessly, but suspecting the worst, I asked him to send me information on what was being taken, in particular the license agreements that govern the allegedly free open source software. In life there are few certainties. Death and taxes are among them; as is the fact that if you are taking open source software for your proprietary project you are likely about to do a deal with the devil that might be extremely difficult, or even impossible, to undo.
My writings about open source and software patents have earned me a special place in the hearts and minds of those who harbor irrational hatred of software patents. But I am here to tell you that open source is not all bad and, in fact, should be embraced. Open source, however, is hardly something new to the patent community. Perhaps it is better to say that where open source software is heading is nothing new, and it will come as a shock to those who hate patents, but patents will be completely necessary in order for the open source community to continue to advance and live up to its full potential.
Those who are in favor of open source frequently become near apoplectic at the thought that open source software can be, and in fact should be, patented. The reality is that forward thinking companies that operate in the open source space do make use of the patent system. A quick search of Freepatentsonline.com shows that Red Hat, Inc., one of the preeminent open source companies in the world, is named as the assignee on some 263 US patents or US patent applications. So if you are about to make an enormous mistake and listen to the “open source means free” community, ask yourself why a highly successful company like Red Hat uses the patent system and acquires patents. If patents are good for Red Hat, an open source company not at all enamored with the existence of software patents, then why are software patents bad for you? Shouldn’t you model your business off successful companies?