Dana Blankenhorn

Caesar Was the Bad Man

I come to bury Caesar, not to praise him.

Mark Antony's funeral oration in Julius Caesar (whoever wrote it) is one of the great speeches in all of literature. It's designed to twist a crowd against their best interests, to win them to an empire against the republic, by laying a great man's acts for the common weal against the mere “principles” espoused by Brutus and Caesar's other killers.

Julius Caesar was the villain. Antony's speech is a lie. The tragedy of the play is the destruction of democracy at the hands of Antony and Octavius, who would become Caesar Augustus.

So now let me come to the late Steve Jobs, and patents. 

Apple's latest patent, and the words of Jobs in his autobiography, make clear that his corporate aim is to own the smartphone market, through the legal system, for as long as demand for smartphones exists. What Microsoft took from him, through Windows, he bent his last energy to overthrow by having all Android phones ruled illegal, by taking them from the marketplace.

It's a direct assault against the heart of open source. And, I believe, a direct assault against the intent of patent and copyright.

Diminishing Patent Returns in Age of Software

Florian Mueller feels like he's in his glory.

Lawyers from Apple have been on a global winning streak against Samsung's Galaxy tablet. The latest win came in Australia, where a judge stopped the product's import over a patent personally filed by the late Steve Jobs. 

To Florian this is a really big deal.

After today's decision, I believe no company in the industry be able to launch any new Android-based touchscreen product in Australia anytime soon without incurring a high risk of another interim injunction. The two patents on which today's ruling is based aren't Galaxy Tab 10.1-specific at all. They will affect all Android-based smartphones and tablet computers, across all vendors.

If Apple wins the Australian case at the end of the main proceeding, all Android-based products will effectively be shut out of the Australian market forever, unless Google or its device maker partners settle with Apple.

Bunk.

Hope For Open Amid the Ruins

These are tough times to be for open source.

Patent and copyright extremists are wrecking havoc, from technology markets forced to pay patent trolls and giant companies grabbing rights to the future through patents with absurd claims, to Europe extending copyright to 70 years in the name of a few living artists (and their long-dead managers).

But there continues to be ample evidence that copyright and patents need not strangle the future, and folks putting money behind the idea.

The UK's decision to ignore the extremists who put royalties into the European Interoperability Framework, insisting on Royalty Free standards for the goods they procure  is a little marker on the road.

Sure, it's entirely self-serving – governments strapped for cash don't want to pay the patent ransom – but if governments shouldn't be force do do so, what about the rest of us?

Who Will Make the Mozilla Phone?

That's the key question here  and the answer is, probably no one.

Android was a Linux, backed by Google. Their problems weren't with the operating system. In theory a mobile Internet client should be no different than a desktop Linux. But every aspect of the design for any “smart phone” – from how it takes calls, to the user interface, to the way apps interact – is covered by literally hundreds of patents.

• Some are held by giant companies which use them to pry open markets.

• Some are held by “development companies” like Interdigital, who research, invent and patent things for a living. (Interdigital invented one of the first digital encoding schemes, TDMA, back in the day.)

• Others are held by trolls like Lodsys, law firms that pick up minor claims at the patent office, expand them into grand conspiracies, then hold up every company in the mobile ecosystem for big gobs of cash.

You can't invent a way around these patents. If the present patent-and-copyright regime were in place at the dawn of the PC age, I'm sure we'd all still be driving IBMs with twin floppies.

Software patents are bad law for two main reasons.

1. They give lawyers an excuse to file their own private taxes on any innovator, slowing innovation, eventually slowing it to a crawl. Meanwhile nations without such court-created regimes, like China, are free to innovate all they want and run rings around us.

2. You can't invent your way around these patents, unlike drug patents, which specify compounds, or device patents, which are published so rivals can improve them. Patents granted on concepts don't have to show an actual invention. They don't have to publish the code. Which means you can't do the same thing, or something similar, in some other way. You can't patent a new mousetrap if someone has already patented the trapping of mice. You have an absolute monopoly on an entire industry that last for 20 years or more.

The Google Party

The patent fight over Android is leading to an inescapable conclusion.

Google has a business problem that demands a political solution.

The problem here is software patents. More precisely, business method patents encoded in software.

Ever since the State Street case of 1998 it's been open season for patenting business methods through software.

Before State Street, software patents were highly limited. You had to tie the patent claim to a particular device. Software might control a patented machine, but it was the machine that was patented, not the software. Certainly not what the machine did.

State Street changed this. By making methods of doing business subject to patent, all someone had to do was implement a business method through software and run to the patent office. This was made worse by the normal patent game of getting narrow protections through the patent office, then making broad claims for those patents in court.

That's what has happened to Android. Just about anything you could do in a smartphone has been patented. It doesn't matter that the Android design is based on Linux. In fact, Microsoft claims it has patents on Linux, which was created in the early 1990s out of Unix, a technology from the 1960s.

What has changed and why this matters can be seen by looking at a business that is very much pro-patent and built on patents, medicine.

Ink Jet! How Solar is Different from Chips

The Holy Grail of solar cell researchers, a cell that can be printed by something akin to the ink-jet printer by my desk, is within sight.

Oregon State University researchers (go Beavers) say they have created CIGS cells with 5% efficiency using an inkjet process. They also sent out this nifty picture (right) of a cross-section of the cell, taken at a micron level.

Their paper, in Solar Energy Materials and Solar Cells, estimates they can get efficiency up to 12% over time. Naturally a patent has already been applied for.

Most of the publicity surrounding this finding emphasizes the ink-jet printer angle. But there's something more important that must be said about it.

Biting the Long Tail

When Wired editor Chris Anderson was doing his work on The Long Tail in the last decade, he was wildly excited about the possibilities.

Instead of just going after the big customers, he said, prosperity would come by serving smaller markets more effectively, using computer technology. Here it is illustrated, from his blog.

Maybe. (Anderson is now focused on the making phenomenon.)

But the big story of 2011 is how the long tail can bite.

In many industries you don't just have a long tail of buyers, you have one of sellers, and by going after the long tail of sellers lawyers can cause enormous damage.

Will Law Force a Meego-Android Merger?

At first blush the idea sounds stupid.

Why should Android, the leading phone OS on the planet, merge its code base into Meego, which has shipped a single Nokia phone that will likely disappear faster than Mr. Popper's Penguins?

One word. Law.

As Florian Mueller has pointed out, many times now, Google faces an immense potential liability from Oracle's copyright-and-patent suit. The suit isn't against Android per-se. It's against Dalvik, the Java Virtual Machine (JVM) written to run Java-based applications. The Google legal team did not do their homework before letting this semi-proprietary thing into the wild, and Oracle may justify its purchase of Sun with one law suit as a result.

While Google and Oracle are both part of the Open Invention Network, the patent consortium designed to protect Linux, the suit is about Java, not Linux. The OIN has not, and will not, interfere, even though OIN head Keith Bergelt has made noise about wanting to protect Android in the press.

Intellectual Property Imperialism, or The 1793 Game

Think of this as Volume 15, Number 24 of A-Clue.com, the online newsletter I've written since 1997. Enjoy.

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Ideas have no intrinsic value.

They are only valuable if they are exploited. You can only get value from them if you pursue an idea to a completed work or invention, or if you get so good at coming up with new ideas people who do scale works or invention will pay you to supply them.

Patent and copyright were first created as “monopolies” in our 1787 Constitution, but they did not become enforced until the late 19^th century, after the U.S. gained a positive balance-of-trade in the products of ideas – in books and inventions.

When countries like China and India choose to ignore our copyright and patent laws, they are walking in the foodsteps of people like Samuel Slater (right), the people whose inventiveness built this country. Slater copied his 1793 Rhode Island mill from one he'd worked at in England, in violation of English law. Eli Whitney never made money from his cotton gin – his money came from a gun made with interchangeable parts he was able to manufacture.

Even when copyright and patent rights are fully maintained, most of the money they generate does not go to the people who came up with the ideas. In fact, very little does. A singer or author may only earn a 15% royalty. Royalties on patents are even more modest.

So why has the United States become such a stickler on patent and copyright, to the point where the government is willing to call Google an outlaw in order to enforce these laws more rigorously? 

The Word of the Day for App Developers is Union

UPDATE: Apple has responded to the issue below with a letter, which offers no legal protection to app developers.

The U.S. Patent and copyright regimes have evolved to benefit corporations.

That was not their original intent (it was meant to benefit small inventors like this guy), but that's discussion for another time.

For now let's focus on reality. Patents and copyrights are meant to benefit big companies. They're treated as property rights, especially in fast-moving industries. Big outfits like Apple, Google and Microsoft raise high the patent walls, buying rights to inventions they didn't create and then asserting them against their ecosystems, in order to maintain control.

Apple has done this with special ruthlessness, but now a patent troll called Lodsys (and sorry guys but you're a troll) has hoisted it on its own petard.

Lodsys bought an incredibly broad patent, number 10,732,102 for those scoring at home claiming to cover all purchases within applications, when the upgrade process is part of the app.

The “invention” was created by a man named Dan Abelow (above), in 1988, so the actual invention has nothing to do with mobile phones, apps, or anything in the current day. He sold his rights to Nathan Myrhvold's Intellectual Ventures in 2004

Lodsys got its “rights” from Intellectual Ventures. So this is not a case of small inventor getting his just desserts, even second hand. This is a law firm shaking down an industry for its own profit.