Linux and Open Source

Dana Blankenhorn & Paula Rooney
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Why patent consortia are a good thing

By Dana Blankenhorn | July 29, 2010, 9:09am PDT

Summary

When the subject of patents and cross-patent consortia comes up everyone is a troll. They have to be because courts do not recognize the legal requirements of open source.

Topics

Consortium, Pamela Jones, Florian Mueller, Dana Blankenhorn

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Dana Blankenhorn

Biography

Dana Blankenhorn

Dana Blankenhorn

Dana Blankenhorn has been a business journalist for nearly 25 years and has covered the online world professionally since 1985. He founded the Interactive Age Daily for CMP Media, and has written for the Chicago Tribune, Advertising Age's "NetMarketing" supplement, and dozens of other publications over the years.

Paula Rooney

Biography

Paula Rooney

Paula Rooney

Paula Rooney has covered the technology industry for more than 15 years, starting with semiconductor design and mini-computer systems at EDN News and later focused on PC software companies including Microsoft, Lotus, Oracle, Red Hat, Novell and other open source and commercial software companies for CRN and PCWeek. She received a silver award from the American Society of Business Publication Editors in 2005 for her profile on Linus Torvalds and edited and co-authored "Partnering With Microsoft," a book about Microsoft's channel published by CMP Publishing in 2004. Rooney graduated from the Columbia University Graduate School of Journalism in 1997. In her off time, she enjoys scuba diving, sailing, sun worshipping, running and reading. She resides on the shores of Scituate, Massachusetts.

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When the subject of patents and cross-patent consortia comes up everyone is a troll.

Pamela Jones is an IBM troll. Florian Mueller is a Microsoft troll. It must be true because their enemies say so.

IBM and Microsoft both have patent consortia. IBM’s is organized as the Open Invention Network. Microsoft’s is a contract, the one first signed by Novell and since by many others.

Both are important to readers of this blog because they both claim to protect Linux. IBM acted after the SCO case was filed. Microsoft acted after it made a corporate decision to enter the open source arena.

The purpose of both is also the same.

To minimize patent risk among those inside the consortia. Since both are open to new members (OIN now has 36 members) the costs of entry are seen as modest, a great value compared with going into a gun fight with only a pocket knife.

Neither is an absolute assurance you won’t find yourself paying big bucks to patent attorneys. IBM looks set to spend many Euros on them in the coming months. That’s the risk of a monopoly. Patents, like copyright, were seen as monopolies by the Founders.

Personally I find the whole thing wasteful. That’s why I recently called software patents the John Roberts tax. If courts were clear — if it were not possible to patent math or how you do business as the Founders intended — none of this would be necessary.

Mueller calls OIN a “patent trap” and Groklaw’s acolytes have their own names for Mueller, most of which can’t be repeated on a family blog.

I think both sides are missing the point.

Absent legal clarity, or legislative action, this is the situation open source has to live with. It is a tax on innovation, which the Constitution sought to avoid. Of course, the Constitution also sought to avoid the direct election of Senators.

In his book The Most Powerful Idea in the World (above), William Rosen calls the ownership of ideas one of two key ingredients in bringing about the Industrial Revolution. The other, he writes, was the organization of workers into enterprises.

Open source is a shared enterprise. Its purpose is to organize really big ideas, ideas so big they can’t advance under the control of any one company, no matter how big.

Today’s software is something like the Egyptian pyramids we see today, or Machu Picchu as tourists see it today. That’s not what its builders saw. That’s what was underneath. It’s a foundation.

Critics of open source like to talk about how it doesn’t innovate. To some extent that’s true. But that’s not the point, my friend.

Without a sound foundation, software with billions of lines of code in it could never be written, or delivered bug-free at a profit to the world. It’s an organizing principle that works, within the framework of a free society.

It deserves more respect from the legal profession. And perhaps from historians.

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Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983.

Disclosure

Dana Blankenhorn

Dana Blankenhorn has been a journalist, writer and part-time futurist for over 30 years.

At the present moment I run only a personal blog in addition to my ZDNet open source blog.

DanaBlankenhorn.Com has the subtitle The War Against Oil. In the past I have used it to write about political history, e-commerce, personal matters, some ideas related to open source, and The World of Always On, which is the idea of using sensors, motes and RFID to turn WiFi links into platforms for applications which live in the air.

My IRA account at Schwab holds a few tech shares, most notably some Intel and Applied Materials, but there are no open source companies in it. I don’t even own any CBS stock.

Biography

Dana Blankenhorn

Dana Blankenhorn has been a business journalist for nearly 25 years and has covered the online world professionally since 1985. He founded the Interactive Age Daily for CMP Media, and has written for the Chicago Tribune, Advertising Age's "NetMarketing" supplement, and dozens of other publications over the years.

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  • RE: Why patent consortia are a good thing
    "When the subject of patents and cross-patent consortia comes up everyone is a troll."

    I dunno if I'd label businesses that actually make products as "trolls," since they may just be defending their products.

    It's the businesses where the patents themselves are considered the "products" that I think are the real trolls.

    IMO there should really be a requirement that you actually make the product listed in the patent before you can defend it in court.
    ZDNet Gravatar
    CobraA1
    07/31/2010 06:27 AM
  • Claims vs methods in patents
    One thing I've noticed (and probably anyone else who has bothered to read one) is that patents are often written in broad terms so that any method used to reach a claim is covered. I always thought that patents were intended to cover one specific method for one particular claim.

    A recent court case, Ariad v Lilly concerned a patent on a method for reducing genetic expression. The patent claimed that "any compound" that reduced this particular genetic expression was covered by the patent. The court touched upon the point when they said that the Ariad patent was invalid for trying to cover "any compound" that could reduce genetic expression.

    In so many words they said that patents cannot be designed to preclude innovation in the future, which is precisely the problem with the way that patents are prosecuted and enforced. Everyone who prosecutes a patent nowadays is trying to preclude innovation in one particular area of business.

    As I was saying earlier, the claims in the patent attempt to cover all methods that reach the claims. That would be a patent on an idea, not an invention. A patent on a software invention could only reach to one particular method for reaching a claim.

    So for a software patent, one particular method would have to include code. Why? The court in Ariad also pointed out that the description of the invention in the patent must disclose enough information to allow one ordinarily skilled in the art, to recreate the invention without unnecessary experimentation.

    This really gets back to whether or not you're patenting an idea or an invention. That is the question we should be asking.
    ZDNet Gravatar
    epitax
    07/31/2010 11:01 PM
  • Patents are a stupid, until
    the idea you want to patent is your own.

    Then suddenlly they're good, as it gets you the money you feel you deserve for your idea.
    ZDNet Gravatar
    John Zern
    08/01/2010 11:10 AM

  • ZDNet Blogger

    The trouble with patents
    @John Zern I cover healthcare here as well as open source. Healthcare patents are usually straightforward. You can see the device and make one better, then get a new patent. You patent a particular chemical formulation, it's unitary.

    Not true with tech. That's the problem. Someone patented the idea of auctions! You can't really patent math. And the courts have held that it's the expression of the math, the work it does, that renders it patentable, not the math itself.

    But what does that mean? The courts won't tell us. Until they do we have people writing overly-broad patent applications and the patent office granting patents to nonsense.

    This is what I criticize the Roberts court for, refusing to do their job and clarify the meaning of the law in terms of the Constitution.

    My own view is you go back to the <ocument. Article I, Section 8 gives Congress the right to offer these rights for limited times for the purpose of encouraging new stuff.

    In the end, all "intellectual property" becomes public property. It's not meant to be an eternal grant. And the purpose of copyright and patents is to encourage the creation of more stuff.

    How does it encourage the creation of more stuff to patent basic concepts, or to have copyright for Laurel & Hardy, both of whom have been dead for 50 years? When the beneficiaries become estates and corporations, you're not encouraging the creation of more stuff, IMHO.

    eor (end of rant)
    ZDNet Gravatar
    DanaBlankenhorn
    08/01/2010 04:52 PM
  • RE: Why patent consortia are a good thing
    In order to be really useful, Patent consortia must be fair. Microsoft's is not fair. Nobody could think that Microsoft's and Novell's position's are equivalent. ON the other hand, the patent pool which was forced upon the Wright brothers during the first world war was a good example of a successful consortia. See for example: http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war
    ZDNet Gravatar
    atari_z
    08/01/2010 03:31 PM
  • RE: Why patent consortia are a good thing
    The "patent troll" is a myth largely propagated mainly by large corporations angered after having to pay up for infringing others' IP rights. Apparently, trolling is in the eye of the beholder. To my mind, deliberate infringement is worse than asserting a valid right.
    http://www.generalpatent.com/media/videos/patent-troll
    ZDNet Gravatar
    Gena777
    08/04/2010 01:04 PM

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