Friday, May 18, 2007

I'm a fire starter, twisted fire starter ....

Open source is ubiquitous, most of the web runs on it, many electronics devices depend upon it and a large amount of commerce is built on it.

Back in 2004, the OSRM undertook an evaluation of potential patent infringement in open source software and stated :-

"In conclusion, the evaluation found that no court-validated software patent is infringed by the Linux kernel"

Hang-on, but what about all the fuss Microsoft has created with the open source community and potential patent infringement? Are these new patents? What patents are they?

Well Microsoft isn't saying .

Sounds familiar? Haven't we been here before?

Why aren't they saying? According to Edward Olivier, it is:-

"because that could allow open source developers to challenge the patent or re-program the softwares to circumvent the violations."

Thanks to Groklaw for pointing out the OSRM study and remembering Andrew Orlowski's comment that :-

"the true value of Microsoft's patent arsenal lies in the threat of their use, not their actual use."

Hmmmm .... makes sense to me.

I'll also note Brad Smith, Microsoft's Senior Vice President and General Counsel comment that :-

"The only real solution that [the free software] folks have to offer is that they first burn down the bridge, and then they burn down the patent system,"

and ask the question ...

What were patents for?

Well, let's go back to the purpose of patents, and since this is happening in the US, let's take a look at the copyright clause of the US constitution :-

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The key is "to promote". In a world where inventions were kept secret, patents seemed a fair exchange on a societal basis.

You tell us, as in the society, your “big secret” - then we create a bank of all these “ideas” or “big secrets” and in return we will give you a monopoly for a period of time, say X years.

Why do this? Well the argument goes that such a “Bank of Ideas” helps promote innovation in a society. It's a fair exchange as no other alternative exists.

All sounds fairly reasonable, doesn't it?

Houston, we have a problem ...

Assuming that the knowledge is useful in the first place, if X years is greater than the time of independent discovery in society then X acts as a choke hold on innovation. It doesn't promote but instead stifles.

In any case an alternative DOES now exist, it's called open source.

Now with this, there is no choke hold. The benefit to a company using open source is support in the development and adoption of a product rather than monopoly. Since you don’t get to control the market, you have to compete on service.

Wait, a moment, that's a more perfect market! By turning a novel and new idea into an open and free standard, you also drive commoditisation, which allows for the development of more new and novel concepts.

That means ...

Open source should drive innovation and create more perfect markets!

Surely we should be able to see this effect? Working from the ideas of creative destruction as proposed by Joseph Schumpeter ...

"innovative entry by entrepreneurs was the force that sustained long-term economic growth, even as it destroyed the value of established companies that enjoyed some degree of monopoly power."

... you would expect to see some effect of open source, causing a rapid commoditisation of the new and novel and hence allowing for a more rapid rate of innovation. You expect to see some form of disruption with the strongest effect in those industries most reliant on IT.

Step in Andrew Mcafee ...

Andrew and Erik Brynjolfsson undertook a study into information technology's impact on competition and commented that :-

"What we have observed in industry after industry is the emergence of widespread process innovation and replication that is analogous to the product innovation and replication that takes place in high tech"

and also

"Turbulence also increased substantially in the high-IT industries after the mid-1990s, and the same patterns weren't observed in the industries that were less reliant on information technology."

Mid-1990s? You mean like the same time open source was rapidly growing in both adoption and as a movement .. Linux, Apache etc.

Are we seeing the effect of open source?

Accelerating the commoditisation of new and novel concepts from CA to CODB, driving innovation and creating more perfect markets? Are we seeing an acceleration of innovation? Are we seeing the wider effects of Open Source?

Hmmm .... we really need to adopt this meme to more than just software, hardware & processes.

Maybe the patent system has run its course? Maybe it's time for something new? Unless of course you think that software companies and society as a whole will stop innovating without it?

"Burn down the patent system"?

An interesting but obvious idea. But why not?

Now where did I put those matches ....


Daniel Maxwell said...

Really interesting. Definitely time for a rethink.

The current system seems to be based on the notion that companies can simply buy some innovation off the shelf, when in fact it clearly doesn't quite work like that.

Well done for making the case.

swardley said...

Hi Daniel,

Thank you.

Couple of years ago I did a presentation on buying innovation by the carton. There is a bizarre "off the shelf" mentality here but also a fairly major issue of one size fits all within the patent system.

I'm not actually against patents, I feel they have a valuable role (even within software) but the system is designed poorly for today's world. However, if it can't be changed it is better to abandon it for certain industries because of the competitive costs for a society.