CSIRO greedy in Wi-Fi patent battle

commentary IBM, the grand old hoarder of intellectual property, was applauded when it promised in 2005 that it would make 500 patents in its 40,000-strong database freely available to anyone working on open-source projects.

(Australia Dollars image by InfoMofo, CC BY-SA 2.0)

"This is exciting," said famed Stanford Law School professor Lawrence Lessig, who is known for his strong opinions on the need to reduce copyright and intellectual property restrictions. "It is IBM making good on its commitment to encourage a different kind of software development and recognising the burden that patents can impose."

In a statement made several weeks later, Linux founder Linus Torvalds echoed Lessig's praise for Big Blue.

"Software patents are clearly a problem, and I think it's a problem that the open-source community has been pretty aware of for the last five years," he said. "The good news is that a lot of proprietary vendors are starting to see it as a problem as well."

I can't recall any specific instances of public comments, but I have no doubt that Australia's open-source community was also in favour of Big Blue's move.

You can easily imagine Linux and *BSD fans crowded around tables at lunch during the nation's Linux.conf.au conference held around that time every year. "Great that IBM is finally opening its patent library," one bearded Apache coder would have likely stated. "Indeed," would say another bespectacled Solaris kernel engineer. "It's about time."

As a capitalist society, it is a truism that we need to reward such positive and open behaviour on the part of corporations so that we do not let money become the sole currency in which we trade. This is why I find the lack of reasoned discussion around the Commonwealth Scientific and Industrial Research Organisation's (CSIRO) insane pursuit of those who it claims are infringing on its Wi-Fi patent disturbing.

We should be applying the same standards to the CSIRO when it comes to patents as we did back in 2005 to IBM. To do any less will demean and sully us in the eyes of our descendants.

To illustrate my point I encourage you to read an article published in the Sydney Morning Herald yesterday that details the CSIRO's actions in attempting to enforce what it claims is its patent on the Wi-Fi technology which is used everywhere in modern society — from laptops to mobile phones to the Nintendo Wii.

The patent apparently had its genesis in a 1977 paper where one of the CSIRO's scientists wrote about how a set of mathematical equations could be used to sharpen images from optical telescopes ... developed while the search went on for exploding black holes. How Star Trek.

By the late 1980's, so the story goes, the research agency was looking at computer networking, and the Wi-Fi patent landed in 1992.

But, as an extensive article in The Economist in the subject demonstrates (PDF), the history of Wi-Fi is far from simple, and a common-sense definition of where the standard came from would seem to make the CSIRO's claims rather laughable.

Maybe the CSIRO's equations did have their role to play, but the truth is that the Wi-Fi standard arose only after a number of proprietary standards had already existed, and it took more than half a decade and a similar amount of expensive effort by the largest networking vendors of the day (some of the names are still around today, like Nokia and Lucent) to get the technology off the ground.

But let's set all this aside and assume that the CSIRO's argument that its technology is at the heart of the Wi-Fi standard that we enjoy today.

Isn't there an argument to be made that it has already reaped a substantial benefit from its patent, and that it should release the intellectual property to the industry (as IBM did, in a limited form), so that the globe can benefit from its use and continued development?

The SMH article documents the fact that the CSIRO has already made about $250 million from its lawsuits against those who it claims have stolen its ideas.

And yet the same article also quotes CSIRO's commercial executive director, Nigel Poole, as saying that the practical task in front of the research agency is trying to extract licences for use of its patent — which it holds in some 19 countries — from the entirety of the technology industry.

You can imagine the outrage if a commercial organisation was trying to pursue the path the CSIRO is on right now.

Say, for example, that Microsoft, Apple or even a lower-profile company such as Avaya filed lawsuits against every single company in the technology sector with the intent of enforcing its patent on the Ethernet networking standard.

Technology workers across the globe would damn such a company for its outrageous action and then laugh themselves sick as the CEOs of every technology company in existence lined up a battery of law firms to eat the CSIRO's lunch ... with pleasure.

It is perhaps only the non-commercial nature of the CSIRO as a government entity that is protecting it from such censure in the eyes of the technology community.

It is also perhaps instructive to examine the CSIRO's motives for pursuing, as one IP lawyer put it, returns from its Wi-Fi patent which could add up to a billion smackeroos. As a number of news articles have recently made clear, the research agency is losing staff and cutting budgets ... not the least affected is its IT department, with union action already starting to raise its ugly head.

One can only imagine the pressure that the CSIRO's commercialisation department is under at the moment. With such tough times going on at Australia's research flagship, who can blame it for trying to milk its cream-filled udders of lucrative Wi-Fi patent for all that they're worth?

Well, I can.

In its heartless pursuit of the world's technology giants for their claimed violation of its virgin patent, the CSIRO has lost what veneer of scientific respect I had previously accorded it and has taken on the appearance of a giant shambolic gorilla trying to wring all the benefit it can from a technology that it only partially invented and that benefits everyone by remaining an open and free standard.

The agency is not only ruining its own reputation with the technology sector — which, no doubt, will be loathe to work with it ever again — but also Australia's reputation in the global technology community.

Surely a $250 million price tag for one puny mathematical patent is enough. The CSIRO should give up its pointless chase of global technology giants and telcos, and let sleeping laptops lie.