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Friday night, I tweeted a link to a Guardian article stating that app developers were withdrawing apps from Apple's app store and Google's Android market (and presumably also Amazon's app store), because they feared becoming victims of a patent trolling lawsuit. That tweet elicited some interesting responses that I'd like to discuss.

The insurance solution?

One option might be to rely on the insurance industry to solve the problem. "Isn't this what insurance is supposed to be for? Couldn't all these developers set up a fund for their common defense?" wrote @qckbrnfx. An interesting idea, and one I've considered. But that's a cure that seems worse than the disease. First, it's not likely to be a cure. How many insurance companies actually defend their clients against an unreasonable lawsuit? They typically don't. They settle out of court and your insurance premium goes up.

If you look at medical malpractice insurance, where unfounded malpractice claims are the equivalent to trolling, I would bet that the willingness of insurance companies to settle out of court increases trolling. An insurance solution to the problem of trolling would be, effectively, a tax on the software developers. And we would soon be in a situation where insurance companies were specifying who could develop software (after a couple of malpractice cases, a doctor becomes uninsurable, and he's effectively out of the business, regardless of the merits of those cases), what software they could develop, and so on. Percy Shelley once said that "poets are the unacknowledged legislators of the world." But my more cynical variation is that the insurance companies are the world's unacknowledged legislators. I don't want to see the software industry dancing to the insurance industry's tune. Some fear big government. I fear big insurance much more.

Fighting back?

There's a variant of the insurance solution that I like: @patentbuzz said: "Developers need to unite and crowdfund re-exam of obnoxious troll patents. Teach them a lesson." This isn't "insurance" in the classic risk-spreading sense: this is going on the offensive, and pooling funds to defend against trolling. I do not think it would take a lot of effort to make trolling (at least, the sort of low-level trolling that we're looking at here) unprofitable, and as soon as it becomes unprofitable, it will stop. Small-time app developers can't afford lawyers, which is precisely why trolling is so dangerous. But here's the secret: most patent trolls can't afford lawyers, either. They can afford enough lawyering to write a few cease and desist letters, and to settle out of court, but their funds would be exhausted fairly quickly if even a small percentage of their victims tried to fight back.

This is precisely where the big players need to get into the game. Apple has tried to give their app developers some legal cover, but as far as I know, they have not stepped in to pay for anyone's defense. Neither has Google. It's time for Apple and Google to step up to the plate. I am willing to bet that, if Apple or Google set up a defense fund, trolling would stop really quickly.

Blocking sale of patents?

A large part of the patent problem is that patents are transferable. @_philjohn asks "Do you think changing law to prevent transfer of patents could reduce the patent troll problem?" On one level, this is an attractive solution. But I'm wary: not about patent reform in itself (which is absolutely necessary), but because I've worked for a startup that went out of business. They had a small intellectual property portfolio, and the sale of that portfolio paid for my (substantial) unused vacation time. That's not how things are supposed to happen, but when startups go out of business, they don't always shut down nicely. It's worth asking what the cost would be if patents and other kinds of intellectual property were non-transferable. Would venture capitalists be less likely to invest, would startups fail sooner, if it were impossible to sell intellectual property assets? I suspect not, but it isn't a simple question.

A call to action

Patent and copyright law in the U.S. derives from the Constitution, and it's for a specific purpose: "To promote the progress of science and useful arts" (Article I, section 8). If app developers are being driven out of the U.S. market by patent controlling, patent law is failing in its constitutional goal; indeed, it's forcing "science and the useful arts" to take place elsewhere. That's a problem that needs to be addressed, particularly at a time when the software industry is one of the few thriving areas of the U.S. economy, and when startups (and in my book, that includes independent developers) drive most of the potential for job growth in the economy.

I don't see any relief coming from the patent system as it currently exists. The bigger question is whether software should be patentable at all. As Nat Torkington (@gnat) has reported, New Zealand's Parliament has a bill before it that will ban software patents, despite the lobbying of software giants in the U.S. and elsewhere. Still, at this point, significant changes to U.S. patent law belong in the realm of pleasant fantasy. Much as I would like to see it happen, I can't imagine Congress standing up to an onslaught of lobbyists paid by some of the largest corporations in the U.S.

One dimension of the problem is relatively simple: too many patent applications, too few patent office staff reviewing those applications, and not enough technical expertise on that staff to evaluate the applications properly. It doesn't help that patents are typically written to be as vague and broad as possible, without being completely meaningless. (As the staff tech writer at that startup, I had a hand in reviewing some of my former employer's patent applications). So you frequently can't tell what was actually patented, and an alleged "infringement" can take place that had little to do with the original invention. Tim O'Reilly (@timoreilly) suggested a return to the days when a patent application had to include the actual invention (for software, that could mean source code) being patented. This would reduce much of the ambiguity in what was actually patented, and might prevent some kinds of abuse. Whatever form it takes, better scrutiny on the part of the patent office would be a big help. But is that conceivable in these days of government spending cuts and debt ceilings? Larger filing fees, to support the cost of more rigorous examination, is probably a non-starter, given the current allergy to anything that looks like a "tax." However, inadequate review of patent applications effectively imposes a much larger (and unproductive) tax on the small developers who can least afford it.

If we can't rely on the patent office to do a better job of reviewing patents, the task falls to the Apples and Googles of the world — the deep-pocketed players who rely on small developers — to get into the game and defend their ecosystems. But though that's a nice idea, there are many reasons to believe it will never happen, not the least of which is that the big players are too busy suing each other.

Apple and Google, are you listening? Your communities are at stake. Now's the time to show whether you really care about your developers.

Crowdfunding the defense of small developers may be the best solution for the immediate problem. Is this a viable Kickstarter project? It probably would be the largest project Kickstarter has ever attempted. Would a coalition of patent attorneys be willing to be underpaid while they contribute to the public good? I'd be excited to see such a project start. This could also be a project for the EFF. The EFF has the expertise, they list "innovation" and "fair use" among their causes, and they talk explicitly about trolling on their intellectual property page. But they've typically involved themselves in a smaller number of relatively high-profile cases. Are they willing to step in on a larger (or smaller, as the case may be) scale?

None of these solutions addresses the larger problems with patents and other forms of intellectual property, but perhaps we're better off with baby steps. Even the baby steps aren't simple, but it's time to start taking them.

Related:

• Should the patent office open its internal guidelines to the public?


• Disastrous implications of new Apple patent for blocking cellphone video


• Patent database up and running


• Why software startups decide to patent ... or not


• Apple offers some patent cover





PlanetMySQL Voting: Vote UP / Vote DOWN

Friday night, I tweeted a link to a Guardian article stating that app developers were withdrawing apps from Apple's app store and Google's Android market (and presumably also Amazon's app store), because they feared becoming victims of a patent trolling lawsuit. That tweet elicited some interesting responses that I'd like to discuss.

The insurance solution?

One option might be to rely on the insurance industry to solve the problem. "Isn't this what insurance is supposed to be for? Couldn't all these developers set up a fund for their common defense?" wrote @qckbrnfx. An interesting idea, and one I've considered. But that's a cure that seems worse than the disease. First, it's not likely to be a cure. How many insurance companies actually defend their clients against an unreasonable lawsuit? They typically don't. They settle out of court and your insurance premium goes up.

If you look at medical malpractice insurance, where unfounded malpractice claims are the equivalent to trolling, I would bet that the willingness of insurance companies to settle out of court increases trolling. An insurance solution to the problem of trolling would be, effectively, a tax on the software developers. And we would soon be in a situation where insurance companies were specifying who could develop software (after a couple of malpractice cases, a doctor becomes uninsurable, and he's effectively out of the business, regardless of the merits of those cases), what software they could develop, and so on. Percy Shelley once said that "poets are the unacknowledged legislators of the world." But my more cynical variation is that the insurance companies are the world's unacknowledged legislators. I don't want to see the software industry dancing to the insurance industry's tune. Some fear big government. I fear big insurance much more.

Fighting back?

There's a variant of the insurance solution that I like: @patentbuzz said: "Developers need to unite and crowdfund re-exam of obnoxious troll patents. Teach them a lesson." This isn't "insurance" in the classic risk-spreading sense: this is going on the offensive, and pooling funds to defend against trolling. I do not think it would take a lot of effort to make trolling (at least, the sort of low-level trolling that we're looking at here) unprofitable, and as soon as it becomes unprofitable, it will stop. Small-time app developers can't afford lawyers, which is precisely why trolling is so dangerous. But here's the secret: most patent trolls can't afford lawyers, either. They can afford enough lawyering to write a few cease and desist letters, and to settle out of court, but their funds would be exhausted fairly quickly if even a small percentage of their victims tried to fight back.

This is precisely where the big players need to get into the game. Apple has tried to give their app developers some legal cover, but as far as I know, they have not stepped in to pay for anyone's defense. Neither has Google. It's time for Apple and Google to step up to the plate. I am willing to bet that, if Apple or Google set up a defense fund, trolling would stop really quickly.

Blocking sale of patents?

A large part of the patent problem is that patents are transferable. @_philjohn asks "Do you think changing law to prevent transfer of patents could reduce the patent troll problem?" On one level, this is an attractive solution. But I'm wary: not about patent reform in itself (which is absolutely necessary), but because I've worked for a startup that went out of business. They had a small intellectual property portfolio, and the sale of that portfolio paid for my (substantial) unused vacation time. That's not how things are supposed to happen, but when startups go out of business, they don't always shut down nicely. It's worth asking what the cost would be if patents and other kinds of intellectual property were non-transferable. Would venture capitalists be less likely to invest, would startups fail sooner, if it were impossible to sell intellectual property assets? I suspect not, but it isn't a simple question.

A call to action

Patent and copyright law in the U.S. derives from the Constitution, and it's for a specific purpose: "To promote the progress of science and useful arts" (Article I, section 8). If app developers are being driven out of the U.S. market by patent controlling, patent law is failing in its constitutional goal; indeed, it's forcing "science and the useful arts" to take place elsewhere. That's a problem that needs to be addressed, particularly at a time when the software industry is one of the few thriving areas of the U.S. economy, and when startups (and in my book, that includes independent developers) drive most of the potential for job growth in the economy.

I don't see any relief coming from the patent system as it currently exists. The bigger question is whether software should be patentable at all. As Nat Torkington (@gnat) has reported, New Zealand's Parliament has a bill before it that will ban software patents, despite the lobbying of software giants in the U.S. and elsewhere. Still, at this point, significant changes to U.S. patent law belong in the realm of pleasant fantasy. Much as I would like to see it happen, I can't imagine Congress standing up to an onslaught of lobbyists paid by some of the largest corporations in the U.S.

One dimension of the problem is relatively simple: too many patent applications, too few patent office staff reviewing those applications, and not enough technical expertise on that staff to evaluate the applications properly. It doesn't help that patents are typically written to be as vague and broad as possible, without being completely meaningless. (As the staff tech writer at that startup, I had a hand in reviewing some of my former employer's patent applications). So you frequently can't tell what was actually patented, and an alleged "infringement" can take place that had little to do with the original invention. Tim O'Reilly (@timoreilly) suggested a return to the days when a patent application had to include the actual invention (for software, that could mean source code) being patented. This would reduce much of the ambiguity in what was actually patented, and might prevent some kinds of abuse. Whatever form it takes, better scrutiny on the part of the patent office would be a big help. But is that conceivable in these days of government spending cuts and debt ceilings? Larger filing fees, to support the cost of more rigorous examination, is probably a non-starter, given the current allergy to anything that looks like a "tax." However, inadequate review of patent applications effectively imposes a much larger (and unproductive) tax on the small developers who can least afford it.

If we can't rely on the patent office to do a better job of reviewing patents, the task falls to the Apples and Googles of the world — the deep-pocketed players who rely on small developers — to get into the game and defend their ecosystems. But though that's a nice idea, there are many reasons to believe it will never happen, not the least of which is that the big players are too busy suing each other.

Apple and Google, are you listening? Your communities are at stake. Now's the time to show whether you really care about your developers.

Crowdfunding the defense of small developers may be the best solution for the immediate problem. Is this a viable Kickstarter project? It probably would be the largest project Kickstarter has ever attempted. Would a coalition of patent attorneys be willing to be underpaid while they contribute to the public good? I'd be excited to see such a project start. This could also be a project for the EFF. The EFF has the expertise, they list "innovation" and "fair use" among their causes, and they talk explicitly about trolling on their intellectual property page. But they've typically involved themselves in a smaller number of relatively high-profile cases. Are they willing to step in on a larger (or smaller, as the case may be) scale?

None of these solutions addresses the larger problems with patents and other forms of intellectual property, but perhaps we're better off with baby steps. Even the baby steps aren't simple, but it's time to start taking them.

Related:

• Should the patent office open its internal guidelines to the public?


• Disastrous implications of new Apple patent for blocking cellphone video


• Patent database up and running


• Why software startups decide to patent ... or not


• Apple offers some patent cover





PlanetMySQL Voting: Vote UP / Vote DOWN

Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She teaches courses on intellectual property, cyberlaw, and information privacy, and she has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes. The following column will also appear in the November 2010 issue of Communications of the ACM.

Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent Survey report that they neither have nor are seeking patents for innovations embodied in their products and services. These entrepreneurs rate patents as the least important mechanism among seven options for attaining competitive advantage in the marketplace. Even software startups that hold patents regard them as providing only a slight incentive to invest in innovation.

These are three of the most striking findings from our recently published article, "High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey."

After providing some background about the survey, this column will discuss some key findings about how software startup firms perceive, use and are affected by the patent system.

While the three findings highlighted above might seem to support a software patent abolitionist position, it is significant that a third of the software entrepreneurs reported having or seeking patents, and that they perceive patents to be important to persons or firms from whom they hope to obtain financing.

Survey background

More than 1,300 high technology entrepreneurs in the software, biotechnology, medical devices, and computer hardware fields filled out the Berkeley Patent Survey. All of these firms had been started no more than ten years before the survey was conducted. We drew our sample from a general population of software firms registered with Dun & Bradstreet (D&B) and from the VentureXpert (VX) database that has a rich data set on venture-backed startups. (Just over 500 of the survey respondents were D&B firms; just under 200 were VX firms.)

Eighty percent of the software respondents were either the CEOs or CTOs of their firms, and most had experience in previous startups. The average software firm had 58 employees, half of whom were engineers. Between 10 and 15 percent of the software startup respondents among the D&B respondents were venture-backed firms. Among the software respondents, only 2 percent had experienced an initial public offering (IPO), while 9 percent had been acquired by another firm.

Our interest in conducting this survey arose because high technology entrepreneurs have contributed significantly to economic growth in recent decades. They build firms that create new products, services, organizations, and opportunities for complementary economic activities. We were curious to know the extent to which high tech startups were utilizing the patent system, as well as to learn their reasons for choosing to avail themselves of the patent system -- or not.

The basic economic principle underlying the patent system is that technology innovations are often expensive, time-consuming, and risky to develop, although once developed, these innovations are often cheap and easy to copy. In the absence of intellectual property rights (IPRs), innovative high tech firms may have insufficient incentives to invest in innovation insofar as they cannot recoup their research and development (R&D) expenses and justify further investments in innovation because of cheap copies that undermine the firms' recoupment strategy.

Although this economic principle applies to all companies, early-stage technology firms might, we conjectured, be more sensitive to IPRs than more mature firms. The former often lack various kinds of complementary assets (such as well-defined marketing channels and access to cheap credit) that the latter are more likely to enjoy. We decided it would be worthwhile to test this conjecture empirically. With generous funding from the Ewing Marion Kauffman Foundation, we and two other colleagues designed and carried out the survey and analyzed the results.

Why startups decide to patent -- or not to

The most important reasons for seeking patents, as reported by the software executives who responded to the Berkeley Patent Survey, were these:

1. to prevent competitors from copying the innovation (2.3 on a 4 point scale, where 2 was moderately important)
2. to enhance the firms’ reputation (2.2)
3. and to secure investment and improve the likelihood of an IPO (1.96 and 1.97 respectively)

The importance of patents to investors was also evident from survey data showing striking differences in the rate of patenting among the VX and the D&B software companies.

Three-quarters of the D&B firms had no patents and were not seeking them. Because the D&B firms are, we believe, typical of the population of software startup firms in the U.S., their responses may be representative of patenting rates among software startups generally. It is, in fact, possible that the overall percentage of software startup patenting is lower than this, insofar as patent holders may have been more likely than other software entrepreneurs to take time to fill out a Berkeley Patent Survey.

In striking contrast to the D&B respondents, over two-thirds of the VX software startup respondents in the sample, all venture-backed, had or were seeking patents. We cannot say why these VC-backed firms were more likely to seek patents than other firms. Perhaps VCs are urging the firms they fund to seek patents; or VCs may be choosing to fund the development of software technologies that VCs think are more amenable to patenting.

Interestingly, the rate of patenting did not vary by the age of the firm (that is, older firms did not patent at rates statistically significant from younger firms).

Why forgo patenting?

The survey asked two sets of questions about decisions to forego patenting: For the last innovation for which the firm chose not to seek a patent, what factors influenced this decision, and then what was the most important factor in the decision?

The costs of obtaining and of enforcing patents emerged as the first and second most frequent explanation. Twenty-eight percent of the software startups reported that the costs of obtaining patents had been the most important factor in this decision, and 12 percent said that the costs of enforcing patents was the most important factor. (They reported that average cost of getting a software patent was just under $30,000.)

Ease of inventing around the innovation and satisfaction with trade secrecy also influenced software startup decisions not to seek patents, although only rarely were these factors considered the most important.

Intriguingly, more than 40 percent of the software executive respondents cited the unpatentability of the invention as a factor in decisions to forego patenting, and almost a quarter of them rated this as the most important factor. Indeed, unpatentability ranked just behind costs of obtaining patents as the most frequently cited "most important factor" for not seeking patents.

It is difficult to know what to make of the unpatentability finding. One explanation might be that the software entrepreneur respondents believed that patent standards of novelty, non-obviousness, and the like are so rigorous that their innovation might not have satisfied patent requirements. Yet, because the patentability of software innovations has been contentious for decades, it may also be that a significant number of these entrepreneurs have philosophical or practical objections to patents in their field.

How important are patents to competitive advantage?

One of the most striking findings of our study is that software firms ranked patents dead last among seven strategies for attaining competitive advantage identified by the survey, as Figure 1 below shows. (The relative unimportance of patents for competitive advantage in the software field contrasts sharply with the perceived importance of patents in the biotech industry, where patents are ranked the most important means of attaining such advantage.)

Figure 1: Measures of Capturing "Competitive Advantage" from Inventions

As Figure 1 shows, software startups regard first-mover advantage as the single most important strategy for attaining competitive advantage. Next most important was complementary assets (e.g., providing services for licensed software or offering a proprietary complement to an open source program).

Interestingly, these two strategies for getting ahead in the market outstrip the IPRs about which we inquired for software firms. Among IPRs, though, copyrights and trademarks, closely followed by secrecy and difficulties of reverse engineering, outranked patents as means of attaining competitive advantage among software respondents by a statistically significant margin.

What incentive effects do patents have?

The Berkeley Patent survey asked startup executives to rate the incentive effects of patents on a scale, where 0 = no incentive, 1 = weak incentive, 2 = moderate incentive, and 3 = strong incentive, for engaging in four types of innovation: (1) inventing new products, processes, or services, (2) conducting initial R&D, (3) creating internal tools or processes, and (4) undertaking the risks and costs of commercializing the innovation.

We were surprised to discover that the software respondents reported that patents provide only weak incentives for engaging in core activities, such as invention of new products (.96) and commercialization (.93). By contrast, biotech and medical device firms reported just above 2 (moderate incentives) for these same questions.

Interestingly, the results did not change significantly even when focusing only on responses from software entrepreneurs whose firms hold at least one patent or application. Even patent-holding software entrepreneurs reported that patents provide just above a weak incentive for engaging in these innovation-related activities.

Resolving a paradox

If patents provide only weak incentives for investing in innovation among software startups, why are two-thirds of the VX firms and at least one-quarter of the D&B firms seeking patents?

The answer may lie in the perception among software entrepreneurs that patents may be important to potential funders, such as venture capitalists (VCs), angel investors, other firms, commercial banks, and friends and family. Sixty percent of software startups that had negotiated with VCs reported that that they perceived patents to be an important factor in VC decisions about whether to make the investments. Between 40 and 50 percent of the software respondents reported that patents were important to other types of investors, such as angels, investment banks, and other companies.

How well is the patent system working?

While most of the Berkeley Patent Survey questions focused on what firms had actually been doing vis-à-vis patents, we decided to ask a few questions to gauge the perception of high tech entrepreneurs about the patent system. We asked, for example, how well the entrepreneurs perceive the patent system to be working for them and for their industry. The scale for responses ranged from 0 = very poorly to 4 = very well, and 2 = neither poorly or well.

The software entrepreneurs' for-my-industry rating was 1.6 and their for-my-firm rating was 1.7. Both results tend toward the poorly end of the scale (in contrast to the biotech and medical device firms that reported above 2 ratings on both questions).

It is interesting is that the VX firms were slightly less positive about the patent system than the D&B firms, although the difference was not statistically significant. We also tested to see if the responses were bipolar (that is, did some software firms rate the patent system very poorly and their ratings canceled out by some positive responses?), but discovered that the ratings fell into a normal distribution, suggesting that we had drawn a sample from a cross-section of the population.

Conclusion

Over the next several years, we expect to engage in further analysis of the results of the 2008 Berkeley Patent Survey and to report new findings about the roles that patents play in the software industry. The initial findings reported here and in the larger article suggest that software entrepreneurs do not find persuasive the canonical story that patents provide strong incentives to invest in technology innovation. These executives regard first-mover advantage and complementary assets as more important than IPRs in conferring competitive advantage upon their firms. Moreover, among IPRs, copyrights and trademarks are perceived to be more important than patents. Still, about one-third of our software entrepreneur respondents reported having or seeking patents, and their perception that their investors care about patents seems to be a key factor in decisions to obtain patents.

Related:

• How do we measure innovation?

---

References:

Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, & Ted Sichelman, High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, Berkeley Technology Law Journal, 25:4, pp. 1255-1327 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429049.

About the Authors:

Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law & Information, University of California, Berkeley.

Stuart J.H. Graham is on leave from his position as an Assistant Professor at the Georgia Institute of Technology, College of Management, to serve as the Chief Economist for the U.S. Patent & Trademark Office (USPTO). The views expressed in this article are his own, and are not the views of the USPTO.

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Below is my talk from the International Federation of Computer Law Associations conference banquet that took place in Helsinki last week. (It is post-edited to match what was actually said.)

I have to say I was quite honored to be asked to speak. I was preceded by Finlands Minister of Justice Tuija Brax and later in the evening followed by imho Finlands funniest magician Martti Vannas. The dinner was set in the old stock market building of Helsinki, an exquisite restaurant now. I'm happy to say the talk was well received and many of the lawyers came to thank me afterwards.

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Glyn Moody has an interesting piece on Why Patents are Like Black Holes where he looks at the situation when a large patent holder goes bankrupt - or is about to. His point is that even if a company otherwise can go out of business cleanly, the patents often remain as a piece of "IPR" that can come back and haunt us like a zombie.

Also Matt Asay recently weighed in on the subject:

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Or: “Don’t be a Cnut.”

Yesterday I had a look at the response of the Joomla! community to the news that Microsoft had signed the Joomla! Contributor Agreement and was contributing code to the content management project.

You probably won’t be surprised to find that some people don’t like the idea. The speed and vehemence of their rejection of Microsoft’s involvement in the project is entirely predictable, but none the less depressing for that.

The usual complaints were rolled out:

you can’t trust Microsoft

when Microsoft contributes a major product to open source, we’ll listen

Microsoft is only doing this to sell more proprietary software

.
Taking those in reverse order: yes Microsoft is doing this to encourage Joomla developers to use Windows. Just as IBM supports Linux to sell more servers etc etc. As Linus Torvalds put it: “Of course they picked an area that helps them. That’s the point of open source – the ability to make the code better for your particular needs.”

And no, Microsoft hasn’t released a major product as open source. Neither had IBM when it started supporting Apache. Holding Microsoft to a different set of expectations is being deliberately difficult – discriminatory in fact.

But doesn’t Microsoft deserve to be discriminated against? Certainly there are good reasons to mistrust Microsoft, but in this instance Microsoft has signed the Joomla! Contributor Agreement, which means it is contributing directly to the Joomla! project using the project’s chosen license (the GPL) and procedures. It didn’t have to do this. The Microsoft of old would sooner have forked the project – or more likely created a competing product based on .NET.

Perhaps we shouldn’t be too quick to praise Microsoft for simply playing by the rules – but equally we should not discriminate against the company for doing so either. There is talk in the comments to the Joomla! announcement of forking the project without Microsoft’s code. To me that attitude contradicts the spirit – although not the precise wording – of the Open Source Definition (No Discrimination Against Persons or Groups). Back to Linus Torvalds: “I believe in open development, and that very much involves not just making the source open, but also not shutting other people and companies out.”

Last year in a speech at the Open World Forum in Paris I made reference to King Cnut, the Viking King who, legend has it, commanded the tide to halt in order to prove to his followers that the power of kings is worthless compared to those of God (or nature).

I discussed the fact that over the years it has been easy to see Microsoft as King Cnut without the self-awareness – attempting to hold back the open source waves, while these days it is a description that more accurately applies to certain free and open source software advocates – attempting to hold back the waves of contributions from proprietary software vendors.

That is their right of course, but it also seems to me that by doing so they are not only acting in a discriminatory manner but also in a counter-productive one.

Those railing against Microsoft contributing code to open source projects, are tilting at windmills. The danger Microsoft poses to open source lies not in the code but in the patents. As I noted in my speech last year, the future battles will not be fought around open source licensing, but patents, open standards, open access and open government.

Microsoft has been making regular appearances on our CAOS Links posts in recent weeks. On the positive side, the company has taken steps forward as it released the source code of the .NET Framework Client Libraries for OData under the Apache 2.0 license, released its StyleCop source code style and consistency tool as open source, using the MS-PL, signed the Joomla! Contributor Agreement, and participated at DrupalCon.

On the negative side it also took a step backwards when it signed a patent agreement with HTC covering HTC’s mobile phones running Android.

To be more specific it wasn’t necessarily the signing of the patent deal that was a negative step (we’ll leave the more general discussion of software patents to another post) but the fact that the company once again chose to highlight the fact that the patent agreement related to open source software without providing any details.

Just as we saw in the announcement of a previous agreement with Amazon, open source software takes center stage, and yet we have no way of knowing if the focus placed on open source software in the announcement is proportionate to the focus placed on open source software in the agreement.

This is clearly potentially damaging for open source, but it is also potentially damaging for Microsoft as it tries to encourage more open source developers and users to move to its platforms. That is why we noted in July last year that “in order to convince those FOSS advocates that it is serious about co-existence, Microsoft needs to find a way to publicly communicate details about those 200+ patents in such a way that is not seen as a threat and would enable open source developers to license, work around, or challenge them.”

We also stated that we believed that the company was aware of this. More accurately, perhaps, we should have stated that we believed a part of the company was aware of it. Another part is busy signing patent licensing deals and shouting about how they relate to open source.

If Microsoft wants to be taken seriously by open source supporters it needs to find a way to rationalize these two parts of its business. At the same time however, if open source supporters want to defeat the biggest threat Microsoft poses to open source, they need to encourage, rather than attack, it when it does do the right thing.

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In response to the IEEE's report on Patent Power, which lists the top companies ranked by number of patents, Ari Shahdadi and Brad Burnham made trenchant comments in email that I thought were worth sharing (with their permission):

Ari wrote:

The main article is sad to read, with choice quotes like this: "Clearly, the global recession seriously hampered innovation in the United States." If I'd like to do anything, it's end the use of patenting statistics as a metric for innovative activity, especially by groups like the IEEE.

Brad responded:

Amen - R&D spending is also a bad indicator because so much is wasted in big companies. The methodology should have something to do with end user utility. Facebook has had a bigger impact on more lives than IBM and they don’t spend a fraction of what IBM spends on R&D or on patents.

I totally agree with both Ari and Brad, but just wishing that people would use another metric won't make it happen. How might we construct a metric that would reflect the transformative power of the web (no patents), Google (nowhere near as many as their innovations), Facebook (ditto), Amazon (ditto, despite the 1-click flap), Craigslist, Wikipedia, not to mention free software such as Linux, Apache, MySQL and friends, as well the upwelling of innovation in media, maker culture, robotics... you name it: all the areas where small companies create new value and don't have time, money or inclination to divert effort from innovation to patents?

I've long been mindful of the power of synthetic indexes. How many people who religiously check the Dow or the Nasdaq know which companies it actually represents?

It seems to me that there ought to be a way to measure the introduction of new products, and rank them by novelty and by widespread acceptance, in some way that reflects a more substantial measure of innovation and its impact on the economy.

I'd love your thoughts about what could go into such a measure.

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