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IBM's Patent Sea Change, and "No RAND in OASIS"?
Monday, April 11 2005 @ 10:23 PM EDT

It's nice to have some good news about patents, other than the fact that Smuckers lost their ridiculous patent on peanut butter and jelly crustless sandwiches. Not innovative enough, perchance. Or maybe too much prior art. In my house alone.

You can read all about it on Dennis Crouch's Patently O: Patent Law Blog. "Rather than issuing an opinion," he writes, "the court issued a per curium Rule 36 decision without opinion. Generally Rule 36 decisions are reserved for cases that are so clearly on one side of standing precedent that a written opinion is deemed unnecessary." If only they were all so easy.

Anyway, Lawrence Rosen believes there's hopeful patent news regarding IBM's recent announcement that from now on, all their patents donated to OASIS will be free. You may have seen the story in the NY Times (also available in the International Herald Tribune, without a sub). Larry said I can share the email with you. He says that it looks like RAND is no more as far as OASIS is concerned, and if so, we have IBM to thank.

Here's Larry's email:

Dear colleagues,

This morning I was delighted to read in the New York Times that IBM has committed "all of its future patent contributions to the largest standards group for electronic commerce on the Web, the Organization for the Advancement of Structured Information Standards, would be free."

I don't think it is too soon to congratulate ourselves that a huge battle has been won. IBM is the big gorilla in the patent zoo, and when it agrees to open standards in OASIS we're a good long way to victory. I'm confident other companies will join as they recognize that it is in their own best interest to do so. The newspaper story doesn't have all the details, of course, and companies (through their lawyers and standards professionals) will be rewriting the rules over time to implement freedom in OASIS. There may still be skirmishes among the professionals. But in broad brush, I think we just won "No RAND in OASIS."

The free software and open source communities and customers worldwide can apparently be reassured that a large chunk of patents have been made available for free when we implement OASIS industry standards. That's good news.

Of course, as Richard Stallman and many others remind us, software patents continue to confound even when we're not implementing industry standard software. Most of us believe the entire patent system is ripe for dramatic reform to better meet its stated goals. Many of us share a dream of a rich commons of software and content that is free from so-called "intellectual property" ownership. That's the broader war many of us continue to fight. But the battle in OASIS, I predict, will soon be history.

Thanks to each of the signatories, and to the many folks around the world who wrote in support.

Best regards,

/Lawrence Rosen

You can read more about IBM's sea change on the patent issue in ZDNET, but note their idea on one way to improve the patent-granting process:

IBM's antidote to the problem is to increase the scope of the investigation into 'prior art' associated with software patents. Stallings believes that sort of undertaking is something the academic community, volunteers and others are willing to help in.

"Because of the Internet, you can have thousands if not millions of individuals around the world share information about whether that invention actually took place years and years ago. You'll find volunteers and others interested in a public inspection of patents. The technology [currently] exists for that."

"We are saying that the granting of it, inspection of it, challenge, and post grant should be enhanced to take full advantage of new technologies and also the brain power of people around the world to make sure it is truly new things that are coming out."

Yo. We are here.

I'll also let you read a memo that was sent around IBM today, which got sent to me also, but not by them. They'll have to sue me to find out who leaked it, and even then, I'll go to prison first rather than reveal my sources, like the Apple bloggers, and IBM can put lit matches between my toes and I still won't squeal. I hope you enjoy it, so it's worth me being boiled in oil and drawn and quartered and dragged by horses in four directions at once, as I yell, "I'll never reveal my anonymous source." Oops. There I've done it. Rats. I never could keep a secret. Just joshing. It wasn't anonymous. It's just anonymous to you. By the way, you can read an Amicus Curiae brief Groklaw is a part of in the Apple v. Does case here. It was filed today in the Sixth Appellate District Court. Here's the IBM memo:

Four things you need to know about IP

Once considered the exclusive domain of developers, researchers and lawyers, intellectual property (IP) has emerged as one of the hottest topics in business today. The ways companies, governments, standards bodies, and universities address the rapid evolution of intellectual property as a business tool could have a profound effect on this era of collaborative innovation.

IBM is fueling what some might call one of the most significant transformations in IT history -- the reinvention of intellectual property. The tech industry must change the way it approaches IP if it wants to harvest future growth. To keep you up to date, below is a list of the four things you need to know about innovation and IP.

1. Collaboration is key to innovation:

In recent years, disputes over intellectual property have threatened to disrupt innovation in everything from on-line sales to text messaging in cellular phones. To improve economic growth and competitiveness, governments and the private sector must create an environment favorable to cross-border, cross-organizational and cross-disciplinary collaboration.

2. Open standards are essential to collaborative innovation:

No single entity has all the answers. To successfully tackle some of the toughest problems, collaboration is essential. Open standards enable the IT infrastructure and the solutions it supports to work much better together, facilitating collaboration and creating a platform for innovation.

3. In today's competitive marketplace, proprietary solutions and open standards must coexist and complement one another:

Open-standards-based innovation will not supplant proprietary innovation; both are effective and important models. Open-source communities quickly deliver innovations, which can be adopted by developers as a platform upon which to build proprietary offerings and generate income growth.

4. Quality matters. Patents should be granted only for what is new:

A strong, global, intellectual property system encourages innovation, but the real power of that system depends on the quality of the patents it produces. IBM believes quality depends on granting patents for ideas that embody genuine scientific progress and technological innovation. In addition, incremental development -- that which merely uses the existing stockpile of basic technology for its intended purposes -- often does not rise to the level of patent-worthiness. Therefore, IP laws and policies require careful management to encourage incremental innovation, while preventing over-protection that would work against the public interest.

Interesting, no? Of course, my preference would be that software and patents get a divorce and make a clean break of it, whereas IBM supports the software patent directive the EU keeps trying to shove down everyone's throats over there. I'm hoping they see that the wording on what constitutes a "technical contribution" needs to be rewritten. How about J? Keep thinking deep thoughts, IBM, please.

If I had all of IBM's patents, I might feel very differently about it. It's like Microsoft. How do you go open source, which they more or less have to someday, this puff piece notwithstanding, without angering your shareholders? (The article has a guest-starring appearance by none other than that "independent" analyst, Laura Didio, singing Microsoft's praises -- alert the media! Didio praising Microsoft! When does that happen? -- and the article pushes her "independent" report, so I'm sure you won't want to miss it for that alone. Just don't call her, OK?) But the article is fascinating on another score: it lays out their anti-Linux strategy, devised by Martin Taylor, which they present as winning the anti-Linux war, thanks to studies like Ms. Didio's, or something like that. They are at least pretending that they really believe Didio's studies. Message to Martin Taylor: Listen to your mother:

Microsoft initially sneered at Linux. . . .Taylor said Microsoft initially saw nothing revolutionary in Linux technology and thought "it might not be that interesting to people."

Then when Linux became more popular, Microsoft had what Taylor called "an emotional response." Executives publicly derided Linux and even called it a cancer, further polarizing the industry into Windows and Linux camps.

"You had a very visceral, vibrant, emotional community being very negative aggressively toward Microsoft in a very emotional way, which sometimes causes an emotional response, of course," he said.

Taylor now advises employees not to blast a product that many of its customers appreciate.

Looking back, Taylor said the viciousness of the criticism almost kept him from taking the job and made his mother, a journalism major, worry about his career choice.

"She reads every paper in the country, I think," he said. "I used to get e-mails once a month 'Are you still employed? Good gracious, every time I read the paper there's something else about Linux taking over the world.' "

Psst. Martin. It *is*.

I suppose Linux "extremists" are to blame for calling Ms. Didio Ms. Didiot, but calling Linux a cancer (and unAmerican) is right down the middle, mainstream, super-polite fine. No extremism there. Puh-lease. Anyway, I could tell you some stories of what the dark side has done to me, if I was the whining-in-public type that would top anything Didio has complained about. Seriously. I think they'd best change the subject.

Of course, being Microsoft puffery, they describe Linux's beginning like this:

Finnish programmer Linus Torvalds created the program in 1991 so he could run a variation of the industrial-strength Unix operating system on his PC. Torvalds shared the system on the Internet, where he asked others to help improve the system, and a phenomenon was born.

Sigh. Anyway, here's what Microsoft does to try to figure out how to beat Linux:

Taylor recruited former IBM Linux advocate Bill Hilf to run the lab. Hilf keeps Microsoft abreast of the competition by running a stack of machines with about 30 different versions of Linux. He runs tests on the systems himself, uses them to explain the software to Microsoft colleagues.

Hilf is among 18 members of Taylor's team who work just across the street from Ballmer's building, in a row of unassuming offices decorated with the occasional Linux penguin logo. Taylor also hires a rotating mix of Linux experts for different projects, using an employment agency to recruit people. . . .

Microsoft used its research and customer surveys to develop a marketing campaign it calls "Get the Facts." The campaign uses a collection of studies, some funded by the company, that raise questions about "total cost of ownership," or the actual cost of running Linux when support and other expenses are taken into consideration.

Linux supporters dismiss the campaign as propaganda, but it may have contributed to a shift in the Windows-Linux debate toward business questions and away from philosophical arguments about whether software should be freely shared.

Forewarned is forearmed. By the way, software *should* be freely shared.

: )

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