by Brian Prentice | June 18, 2013 | Submit a Comment
The series of tubes we affectionately know as the internet has been abuzz over the last week with talk of Apple’s flat design detour with iOS7. As with anything aesthetic, there’s bound to be be the highly positive views and the highly critical. We’ve seen psuedo-conspiracy theories emerge along with some trending memes.
So does all this discussion of colour palettes and iconography point to an appreciation of UX design by IT’s digerati?
Nope! Not as I see it.
In fact, I’d argue the week’s icon madness indicates that too much of the IT world is still entrenched in the view that great UX is synonymous with great graphic design.
The man himself, Steve Jobs, once said, “Design is not just what it looks and feels like. Design is how it works.” Missing from most of the post-WWDC conversation has been much insight into the way these design changes fundamentally make individual apps, collection of apps, or the devices they operate on work better.
I’ve been spending a bit of time going through the presentations from the WWDC. I must say, there is some impressive stuff that Apple is doing for the design and developer community. The new system font is beautiful and the dynamic type capability in UIKit is some serious goodness. There’s the new App Switcher and it’s relationship with the improved multitasking capabilities. The motion effects, in my opinion, are a marvel of engineering.
What’s much less clear is how Apple’s new objectives of clarity, deference (which Microsoft describes with their Modern UI as “content over chrome”), and depth – design themes that the new UIKit is being engineered to support – enable a new style of app experience. Experience, mind you, in the how it works sense…not the look and feel sense.
When I search for clues in Apple’s own apps, the feeling I get is that the upholstery on the furniture has changed, but the room’s purpose and layout is the same as it always was. Adding depth as a new dimension to app design seems to me to have profound long term potential. But if it’s primarily demonstrated at the top level of the operating system by floating icons above your wallpaper, then we have something which will rapidly descend into ho-hum ornamentation. Maybe Calendar and Notes isn’t the right place to highlight this stuff…but surely there’s something that can.
My intention is not to be critical of Apple. After all, Microsoft is having the same issues with Windows 8.
Their Modern UI pre-dates Apple’s drive towards a typographic experience. It’s one thing to tell designers and developers to clear out the chrome. It’s another thing to articulate how content itself becomes the engaging, interactive raison d’être of an app. Here again, when we look to compelling examples from Microsoft’s own apps, we’re left wanting. Semantic zoom is a great UX innovation. But isolated in a handful of included apps it’s difficult to sense it’s potential.
As a result of all this, the conversation about Microsoft’s new design language has been derailed. Like Apple, it’s largely about icons, which in Microsoft’s case are their Live Tiles…along with how users must lurch back-and-forth between the new Start screen and old desktop.
The point is that UX is too easily seen as the look and feel stuff. And the more time we spend on colour palettes and icons the less nuanced our understanding of what these design languages can and should do to software and services. Ultimately, the onus is on all mobile operating platform providers to offer some steak along with the sizzle. They need to show us how their UX vision translates into a new experience with practical examples. In Microsoft’s case, they need a much bigger commitment by their own product groups outside the Windows team to embrace and deliver solutions that take full advantage of their Modern UI. In Apple’s case, I’d love it if they’d apply clarity, deference and depth as one part of a strategy to re-inflate their cloud service offerings.
Ultimately, I’m hoping that we can all shift gears and ignore the icons for a while and think about what will happen when we tap on them.
To paraphrase William Shakespeare, “what’s in an icon, that an app by any other should work as well.” Indeed!
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by Brian Prentice | September 14, 2012 | 2 Comments
There, I said it.
Actually, I was toying with two other titles; “iPhone 5, The Emperor Has No Clothes,” or “iPhone 5, What’s In A Name That A Phone By Another Other Would Operate The Same.”
Look, I’ve been going through the same rationalization process I think a lot of other people have. Is it fair to expect Apple to move Heaven and Earth with every announcement? Why fret, the really cool stuff is in iOS6, not so much the phone. Try as I might, I can’t shake the feeling that with all the build up, the iPhone 5 announcement had all the impact of being hit by a wet noodle.
Now, I’m not stating this as a Gartner analyst but as a dedicated Apple customer. And I’m definitely no Apple-hater looking for a reason to knock the company. I’ve spent my own cash for my iPhone 4 in spite of the fact Gartner would fully fund the cost of the latest Blackberry. I parked my company ThinkPad in a dusty spot under my desk and bought my own MacBook Air to use at work , much to the consternation of our IT department. Heck, I even lined up in front of the Sydney Apple Store on the day of the new iPad announcement for my 64gb, white, wi-fi model. I have enough of the company’s products in my house that with an Apple logo on my mailbox and a blue t-shirt I could open an Apple store.
I’ll be perfectly honest with you. My disappointment is directly related to the fact that I’ve been spending a little time with Windows 8. The new Metro/WinRT design language is a design innovation of the highest order. Nor am I the only one taking notice. Add to that the new Lumia 920 and 820 smartphones which are evolving an alternative industrial design perspective. Microsoft and its partners are beginning to offer a compelling alternative vision for the smartphone.
My gripe…no, my concern…with the iPhone 5 is not that Apple made it. It’s that Apple has diluted the value of their well-crafted product launch strategy. Apple has earned my continued attention because these big productions have been used to announce big changes in the way we experience and interact with digital technology. They are a celebration of what a company driven by a deeply ingrained design ethos can accomplish as compared to those that prefer to market the incremental technical achievements of their engineers.
What is Apple ultimately offering with the iPhone 5? Speeds and feeds. New processor, larger screen, different connector, LTE support. thinner form factor. Don’t get me wrong – these things are important. And they constitute some fantastic engineering work to hang it all together. But is it fundamentally changing my experience with a smartphone? No, not really. So why does this new product need a new version number? Why rent out the Yerba Buena Center? They could have called this “the new iPhone 4S” and just rolled it into the retail channel without the hoopla and fanfare. It would still be a great, competitive phone. On September 12, Apple became the company that I would prefer to ignore. The type of company that tells me that another processor core, a couple of gigs more of storage, even the casing materials, are things that I really need to get excited about.
There are, of course, many people that will rave about the iPhone 5 because that’s what you’re supposed to do when Apple launches any new product. At one level, it can be quite funny as Jimmy Kimmel recently exposed. They handed people an existing iPhone 4S, told them it was a new iPhone 5 and then listened to them rave about how much lighter, faster and clearer it was – even from people that owned an iPhone 4S.
I haven’t lost my passion for Apple products. While I’m gobsmacked at what Microsoft has accomplished with the Metro design language I’m not converted as yet. But I can’t help but feel that Apple used the iPhone 5 launch for marketing over substance. And for the first time ever a word has, only for a brief moment, crossed my mind in relationship to Apple.
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by Brian Prentice | May 1, 2012 | 1 Comment
I guess I should be delighted to hear that the Australian Parliament is going to start examining the reasons why Australian businesses and consumers are paying huge mark ups on on technology products compared to US customers. But I’m not.
See, I don’t really care whether my apps, my songs, my video games, and my ebooks carry a steep premium here in Australia. Apple, Microsoft and all the others can charge whatever they want.
What I care about is why I’m prohibited from shopping outside Australia to get a better price. Shopping for digital products is like being asked for your ID before you enter a department store and if you don’t live in the right location you’re barred entry. Or, they’ll let you in to browse all the great prices but your credit card will be declined at checkout.
If there’s a reason to uplift pricing in Australia then I’m fine with that happening. But it should be the right of the consumer to determine whether those prices warrant the added value, if such value actually exists. If not, they should be allowed to take their business where they please. See, what I want to do to Apple, Microsoft, Adobe is the same thing I’m doing to local retailers. If it costs $110 for a pair of Levi’s 501 jeans at major departments stores in Sydney (yes, that’s the actual price), then consumer should be welcome to take their business to Macy’s online and get them for roughly half the price.
The problem is not high prices. And I believe the Government is wasting all our time exploring that topic. The problem is restraint of trade. And we all know the tricks of the trade that are used to achieve those aims. Things like funnelling non-US customers into local app stores. Disallowing the use of credit cards with non-US mailing addresses. And let’s not forget about the ever-popular region coding system (no, it’s not just a system to control piracy). All, I’m assuming, perfectly legal – a fascinating situation which should again give us pause to think about what we signed up for with the US-Australia free trade agreement.
While the terms of reference for this investigation are yet to be decided, I’m betting that the issue of restricted trade won’t be up for discussion. Why? First, I think it’s impossible to examine this issue without going well beyond the scope of the IT industry. Second, and more important, I don’t think the government seriously wants to wade into the fetid cesspool of inefficient and exclusive distribution agreements, corporate taxation policy, and political influence peddling that makes restraining the free flow of goods such an attractive option for businesses across the Australian economy. Additionally, the Government will find themselves uncomfortably having to consider some of it’s own decisions and political relationships:
- The Australian Government fluffed the opportunity to allow the parallel importation of books, as advised by the Productivity Commission. The higher local prices surely must impact eBook pricing, particularly with Apple’s iBooks, where the publishers set the list price.
- If the Australian Government can demonstrated a willingness to take on multinational tobacco companies and their claims of of IP rights by enforcing plain packaging, why haven’t we seen similar action taken in tackling region coding – a practice that the Australian Competition and Consumer Commission has long identified as a system of biased distribution.
- A big component of this problem is content related. That means taking on the powerful and politically-connected movie, music and publishing industries.
If the Australian government really wants to put some pressure on the high prices we pay for technology products and digital content then Parliament is not the place to do it. Instead, let the Australian public do it through unrestricted markets.
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by Brian Prentice | April 10, 2012 | Comments Off
One BILLION dollars!
It’s hard to fathom that type of money without putting my pinky to the corner of my mouth.
I’m prepared to give Facebook’s management the benefit of the doubt. I think they have some very good reasons for paying the type of money they are for Instagram. So I won’t be spilling any more digital ink over new investment bubbles and crazy valuations.
But consider this – Instagram is a singularly focused app. It is designed to do one thing well. It allows people to apply a digital filter to pictures they take on their mobile devices and to share them. That’s it. Additionally, Instagram chose to go for native mobile development.
The fact that a simple, focused mobile application can create the disruptive potential to garner even a quarter of Instagram’s purchase price should be ringing alarm bells with application developers the world over.
This, ladies and gentlemen, is a paradigm shift!
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by Brian Prentice | March 15, 2012 | 2 Comments
Daddy’s got a new iPad! I just got it home.
Since I live in Australia, I guess I’m one of the first. And the experience I had getting it was a lesson in retail done right. Heck, it was an example of capitalism done right! There were five keys to making my purchase a great purchase experience.
- Honesty – Unfortunately, I couldn’t pre-order my iPad because of my travel schedule. So I had no choice but to brave the Apple Store on launch day. I thought I’d avoid any queues but coming at the nonchalant, but early-enough time of 10:30am. No luck, there was still a queue. I asked the staff running up and down the line how long I’d have to wait. They said 30-45 minutes. I was heading back home with my iPad in 40 minutes.
- Efficiency – As I got into the queue, an Apple staff member asked me what model I was looking for. I told them the it was the white 64gb WiFi version. She dug into her bag and gave me a coupon which secured my purchase. The point here is that the Apple Store matched every unit in stock with a coupon. So, if they didn’t have what I wanted I could either pick something else or leave the queue and wait another day. What I didn’t have to do was waste my time to find out what was in stock.
- Courtesy – when I got into the Apple Store I realised why there was a queue. It kept the store from being a mad house. What they were doing was managing the foot traffic so I didn’t end up jostling and fighting people for available product.
- Commitment – I know it seems trite to say this, but the people working at the Apple Store are on some higher plane of retail existence. They are polite in a way that can only come from the sincerest appreciation for what they’re selling. Add to that knowledge of what they’re selling that can only come from people who use what they’re selling. That was evident by the casual conversations staff were having with waiting customers on what they were doing with their iPads.
- The Extra Mile – The Apple Store was prepared to unbox your new iPad and work with you to get it set up. For free! Here in Australia that type of effort would be deemed by other retailers as being a paid-for service…probably one you’d need to book a week in advance.
None of these things happen by accident. Each of these things requires meticulous planning and a sustained effort at maintaining a high performance culture. In a recent interview with Jonathan Ive, Apple’s Senior Vice President of Industrial Design, he said;
“I think that people’s emotional connection to our products is that they sense our care…”
Well, I certainly felt Apple cared about me as they designed an experience to make acquiring a highly popular product on launch day – one where demand is outstripping supply – a pleasurable one.
Why do I feel compelled to write about this? Two reasons.
The first is to point out to vendors hoping to compete with Apple that this is what you’re up against. Your challenge is how you create the same type of experience with retailers who see your products as just another SKU at aisle 6, floor 4, electronics section.
The second reason is to point out how incredibly hard it will be to achieve that. In a case of ironic serendipity, the National Retail Association in Australia has released an inquiry claiming that 118,000 jobs will be lost to online shopping over the next three years and that 33,000 jobs will vanish because of the GST exemption on imported goods bought online under $1000. Australian retailers (and I’m assuming many other around the world) are obsessed with what everyone else is doing to them rather than focusing on what they need to do to compete in a global digital economy.
What they need to learn from Apple is two critical lessons. The first is to make sure that you have a well-designed and integrated retail experience. One where your customers are not penalised (unavailability of some stock, limited access to specials, etc.) if they chose one over the other.
The more important lesson is price consistency. No amount of experience design can entice people into your shop when your asking price is vastly overpriced compared to online oversees alternatives. If I remove the GST from my new iPad purchase, for comparison purposes, then I’m actually getting my iPad slightly cheaper than I could in the US. That’s online, or in store. Now, locally Apple faces the same real estate and staff costs and the same legal obligations as local retailers. How come they can do all this and the local companies can’t?
So, Apple, thanks for the pleasurable experience.
So, Apple competitors, best of luck.
So, Australian retailers, stop whining and pick up your game.
Now, if you’ll excuse me, I have a new iPad to set up.
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by Brian Prentice | December 11, 2011 | 20 Comments
There’s been a lot of discussion lately about Atos’ CEO Theirry Breton’s plan to implement a zero email policy for internal communications. According to Breton, only 10% of emails received per day are useful. 18% of all email is spam.
I’m curious – what percentage of emails generated internally are deemed as being useless by the people sending them? I’m guessing that would be something closer to 0%.
I’m not being flippant. I think it’s the crux of the problem. While I applaud Breton’s desire to increase productivity and to reduce the encroachment of work into people’s personal lives, I’m afraid he’s misdiagnosed the problem.
The problem with email today is not an ever-decreasing signal-to-noise ratio. Spam filters are doing a pretty good job. And while I concede that I certainly get a lot of unimportant emails every day, I find it takes me no more than 30 minutes to clear the rubbish out. I’d rather spend my 30 minutes doing that than waste it sitting in a meeting room getting nothing done at all. And, prior to the world of email that’s what we spent our time doing. The most common phrase uttered in the 90’s across work cubicles the world over was – “skip the meeting, send an email.” Email emerged as the centerpiece of collaboration and workflow for good reason.
The problem with email is not the volume we see each morning, it’s the stuff left over after it’s been cleared out. It’s the list of things we can’t avoid doing. And that list keeps getting bigger. That’s the true essence of most people’s complaints about email. It’s not a volume problem. It’s an obligation problem. Email “inboxes” have become a misnomer. What we have are email “to do lists.” Woe unto the person that doesn’t stay on top of their email – whether it’s on holidays, at dinner, or on a date. For that person faces a stress-inducing mountain of obligations when they eventually have the heart to log onto their email account(s).
The essence of the email problem is that a global asynchronous one-to-one/one-to-many communication system radically increases the ability of people to seek assistance, create and delegate tasks, update colleagues and coordinate activities.
There is no technology solution to this problem. You can try to parse this out into different applications but the problem remains – as I believe Atos will soon find out.
The only solution, IMO, is to tackle the ballooning administration and bureaucracy overhead in organizations that is fuelling the number of emails being generated. Specifically, our criticism of email as a collaboration tool needs to shift towards the unchecked growth of bureaucracy it enables. And in this context, it is but one piece of IT that is driving the problem. Ask sales reps what they think of CRM. It doesn’t increase their productivity – it drains it as they have to spend increasing amounts of time filling in the system which, in turn, generates more email requests. BPM can standardize best practices – it can also spin out a set of obligations which land in people’s inbox. Every exception to these practices requires streams of emails to associated cc lists, forwards and reply-to-alls.
There are parallels with the argument “guns don’t kill people, people kill people.” Email doesn’t erode productivity and encroaches work into our personal lives, bureaucracy does.”
So don’t fault the tool. Fault what it enables.
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by Brian Prentice | June 9, 2011 | 1 Comment
Personally, I think Apple’s new iCloud service is brilliant. Personally, I’ll be making heavy use of it. Personally, I like the idea of being able to synchronise contacts across devices. Personally, being able to coordinate documents across all my Apple devices will probably push me to buy an iPad as my primary travel computer.
I’m sure that a lot you, personally, like iCloud for similar reasons.
Personally, I’m also quite sure iCloud will send a huge number of enterprise IT managers into a state of apoplexy.
For all the cool things that this well designed solution will provide you, as an individual, I can assure you that many, many IT departments will fixate on one single fact. iCloud creates a potential situation where corporate IP will find it’s way into people’s personal clouds thus out of reach and control by the company.
Does iCloud create IP headaches that IT organizations will have to deal with? Yes. Does iCloud provide opportunities for IT organizations in delivering innovative solutions to staff. Yes. But when it comes to Apple, the glass is half empty for many IT departments. It’s easier, and more satisfying, to hit the “ban it” button then to look for creative ways to take advantage of the new solution.
So here’s my prediction. Because iCloud is provided as an automatic and free service with iOS 5 we will see IT departments, fixated on this problem, seek to prohibit staff from upgrading their iPhones and iPads. Whether they can enforce this or not is immaterial. Whether a whole lot of other tools that create the same potential risks will be left unnoticed will also be immaterial. We’re talking about those IT organizations with an inbuilt dislike for Apple getting a taste of blood. If you’re currently working for a company that has blocked access to Facebook and Twitter because they fear a loss of IP, you can count on this happening. If you’re a sales rep working for a company that demands all your client’s contact details are entered the corporate CRM system then prepare yourself for the email telling you that iOS 5 upgrades are banned.
And of course all new iPad and iPhone acquisitions, once they start getting shipped with iOS 5, will need to be put on hold. It doesn’t matter whether they’re company or employee funded or made available through agreements with the mobile provider.
For a whole lot of organizations out there, the battle between corporate users and their IT departments is about to escalate.
And that will be a shame. Because at the end of the day this will just delay the inevitable.
Apple’s vision of personal computing has unleashed a massive, pent up demand amongst people. That is undeniable. But they are just one of many companies having success in reaching out directly to the user rather than granting to the enterprise IT department the status of rightful proxy to these people’s requirements. It is also clear that people are no longer prepared to separate their personal and professional digital lives in the way the IT department would like. These two intersecting trends are challenging underlying assumptions of what enterprise computing is all about. Enterprise IT departments can rage all they want about these providers. The thing is they won’t change for you. Nor will the users. Ultimately the enterprise IT department can, should and will probably be the ones having to change.
I am not advocating that IT governance controls simply melt away to make room these consumer-oriented providers. But I am suggesting that some creative thinking might yield innovative solutions that can integrate this very different class of provider into the fabric of the IT environment. Consider something like PC fleet management. How can this process be adapted to deal with a range of devices that will be acquired directly by the employee (there is no such thing as a global iPad rollout driven by the IT department)? How should software version control be governed when some systems will be updated automatically by the supplier through the cloud? You get the picture.
It has been my observation that enterprise IT organizations are some of the most resistant departments to change. Conversely, when change becomes absolutely unavoidable they display an amazing ability to craft intelligent, finely-tuned governance controls to deal with the new reality.
I’d like to suggest to all of you in enterprise IT organizations that changing to adapt to a world of what I call DTTU providers (that’s “direct to the user”) has become absolutely unavoidable.
You might as well start adapting with iCloud.
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by Brian Prentice | May 9, 2011 | 2 Comments
It’s 5am. I’ve been up for the last two hours. It seems the Tylenol PM didn’t do it’s job of knocking me out senseless for the 8 hours I needed to avoid the jet-lagged induced fog I’ll be dealing with around 3pm this afternoon.
So, I’ve been up in my hotel room here at the Hyatt Regency in Old Greenwich reading some great articles I’ve been meaning to get to. One of these is “Feature Bloat: The Product Manager’s Dilemma.” The other is “The Laws of Simplicity” by John Maeda. Both sets of authors stress the need to proactively reduce feature sets in products in order to maximize the long-term value that users obtain from them while, at the same time, increasing the organization’s brand value.
As I’m digesting the implications of this message on the way we think about software design I decided to get myself my morning cup of coffee. In fact, I’m slightly surprised I lasted this long without some caffeine cursing through my system. I look, and look…and look. No coffee machine. How could this be? So, I call down to the front desk and I’m told by an extremely polite young man that the hotel doesn’t provide coffee machines in the rooms. Instead, there is complimentary coffee by the elevators which is available from 6am onwards.
Arguably, the Hyatt Regency in Old Greenwich did exactly what Maeda, Rust, Thompson and Hamilton told them to do. They removed a feature. Namely the existence of a coffee machine, a couple of packs of ground coffee and some sugar and non-diary creamer from a guest’s room. And I can see the logic of the hotel’s management. After all, they haven’t actually removed free coffee from the hotel. They simply changed the location of where it’s obtained. And, in the process, they reduced the capital cost of putting coffee machines in every room and the ongoing cost of providing the coffee and condiments.
See, first of all, I don’t want to have to wait for the time hotel management feels is appropriate for me to have my first cup of coffee in the morning. And, if I’m sounding a bit surly, it’s because I’m writing this before I’ve had any coffee. Second, and more important, I feel that the appropriate attire needed to make coffee in the morning is a bathrobe and a pair of glasses. However, I do not believe that the sight of a bathrobe-clad, groggy, stubble-faced middle-aged man wandering around the corridors of a hotel in some caffeine-depraved state of confusion mumbling something about Ethiopian blends is something people should have to deal with in a five star hotel. I know I don’t. So, when the coffee finally arrives, I’ll need to throw something on and make myself slightly presentable. Just for a cup of coffee.
The management of this hotel apparently sees coffee as an amenity of the hotel. They’re missing the point that the coffee is not a feature of the hotel – it’s a feature of the room. A hotel room is an experience and when it comes to the business traveler the experience they’re aiming for is a home away from home. When I’m at home I make coffee when I feel like it and in my PJs. I don’t slip some clothes on and walk up to the top of my street.
Am I then suggesting that Maeda, Rust, Thompson and Hamilton are wrong about reducing features? Absolutely not. The process of removing superfluous features from a product is as important for a hotel as it is for a software designer. The question is how you make the decision. The essence of making the right decisions comes back to the need to get the conceptual design of the product accurately defined at the very outset. What is this solution achieving for the user? Does a feature enhance, or detract from that objective for a majority of the people this solution is designed for? Do we know who those people actually are? Do we have effective feedback loops to assure our decisions are accurate after they’ve been implemented?
The less you understand about the users’ objectives the more likely you’ll make mistakes either in expanding, or contracting, the feature set of a solution.
Now, if you’ll excuse me I need to get myself ready to get my cup of coffee.
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by Brian Prentice | April 28, 2011 | Comments Off
It’s gotten to the point where patent infringement actions in the mobile technology market are about as numerous as offshoots of The Real Housewives reality TV series. And the patents which feature so prominently in these cases seem to share many characteristics with the women in the TV shows – they’re more likely to be found in the middle of a confrontation then in any type of actual money generating activity and they’re convinced of their own unique talent when, in fact, they’re unoriginal and uninspiring.
Sadly the default solution to most patent infringement cases is a confidential, negotiated settlement. I say sadly because everyone else is left to wonder whether it was the quality of the patents that brought the defendant to the table or whether it was a simple economic decision that the cost of the agreement was cheaper then the cost of litigation.
So then, a big, fat shout out to Barnes & Noble. After having been sued (along with Foxconn and Inventec) by Microsoft for infringing a few of their patents in their Nook e-reader, they’ve decided to submit a court filing refuting Microsoft claims. And it looks like they decided to take the gloves off before doing so.
It has been my long held view that software and method patents are needed to support innovation in the IT industry. Especially since they’re a better option than the available alternative. Unfortunately, software and method patents are being debased as an entire category of IP protection by a slipshod review process. It’s gotten to the point where it’s nearly an act of faith to assume a software or method patent is valid before it runs through the court system. The presumption of patent validity, I might add, is a key point that Microsoft is arguing against in the Microsoft v. i4i case being heard by the Supreme Court at this moment.
If you’ve ever had the patience to wade through the dense and overly complex claim language surrounding most software and method patents you probably found yourself muttering “I’m pretty sure I’ve seen this before,” or “well, duh!” These are the types of responses that would indicate a patent claim is not valid. So it was quite insightful to read Barnes & Nobles’ careful examination of the novelty and non-obviousness of Microsoft’s patents they’re being accused of infringing upon. Consider their observation of patent 6,891,551 – Selection Handles in Editing Electronic Documents
“The asserted ’551 patent relates to using handles to change the size of selection areas for selected text. By 2000, when the ’551 application’s provisional was filed, text was routinely selected when reading, review or editing, and handles were routinely used to change the size of selections. The simple act of using handles for their very purpose–changing the size of selections—was neither novel nor non-obvious.”
Or how about patent 5,889,522 – System Provided Child Window Controls
“The asserted ’522 patent relates to nothing more than putting known tab controls into an operating system for use by all applications, rather than providing these tabs on an application-by-application basis. However, the specification of the ’522 patent makes clear that before the filing of the patent, prior art operating systems were already providing applications with a toolbox of common controls to utilize. While the prior art purportedly did not disclose the claimed tab controls in this toolbox, numerous applications already employed tabs to allow users to navigate between pages of information in the application. Simply putting existing tab controls into the toolbox already provided by the operating system was not inventive or patentable.”
On face value I think Barnes & Noble are making one heck of a compelling rebuttal. Of course, we need to wait for the courts to sort this out and I for one am hoping Barnes & Noble is prepared to see this through. Should they do so, and should the courts agree with their position, then that might well give many organizations pause to consider the veracity of Microsoft’s claims to a high quality patent portfolio.
But that’s not all folks! This filing also sheds light on manner in which Microsoft seeks to reach licensing agreements around their patent portfolio. Based on Barnes & Nobles comments it would seem Microsoft is prepared to use a negotiation style reminiscent of the its pre-DOJ days.
When this suit was originally announced, Microsoft Corporate Vice President stated “We have tried for over a year to reach licensing agreements with Barnes & Noble, Foxconn and Inventec.” Apparently a significant part of that time was negotiating an agreement simply to see where Microsoft believed their patents were being infringed. As Barnes & Noble points out:
“Microsoft had prepared claim charts purportedly detailing the alleged infringement but insisted that it would only share the detailed claim charts if Barnes & Noble agreed to sign a non-disclosure agreement (“NDA”) that would cover the claim charts as well as all other aspects of the parties’ discussions. Noting that the patents were public and that the infringement allegations pertained to Barnes & Noble’s public product, Barnes & Noble refused to sign an NDA”
Sorting this out took nearly five months but once an agreement was reached Barnes & Noble asserts:
“Tellingly, although Microsoft had insisted on entering into an NDA covering these claim charts, the charts did not contain confidential information but instead did nothing more than set forth the published claims of certain Microsoft patents on the one hand and publicly known features purportedly employed by the open source Android™ Operating System and the Nook ™on the other hand”
This certainly begs the question of why an NDA was being sought. I’m guessing that some people might conclude that a primary motivation could have been to limit the ability an organization using Android to coordinate a defensive response. Just as interesting was Microsoft proposed pricing. As the filing states:
“After sending the proposed license agreement, Microsoft confirmed the shockingly high licensing fees Microsoft was demanding, reiterating its exorbitant per device royalty for Nook™, and for the first time demanding a royalty for Nook Color™which was more than double the per device royalty Microsoft was demanding for Nook™. On information and belief, the license fees demanded by Microsoft are higher than whatMicrosoft charges for a license to its entire operating system designed for mobile devices, Windows Phone 7.”
Here again, if these assertions are accurate this would call into question the extent to which Microsoft is prepared to support a regime of reasonable and non-discriminatory (RAND) licensing around its patent portfolio.
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by Brian Prentice | January 6, 2011 | 5 Comments
The day before yesterday I posted the response by Ian Birks, CEO of the AIIA, to my blog on the recent changes to intellectual property rights (IPR) considerations in Australian Commonwealth and State Government procurement policy. Since this is a topic of considerable importance, I feel compelled to respond and reassert my position.
One issue Birks has with me is what he sees as a misrepresentation of AIIA’s focus relative to it’s member base. Specifically he takes exception to the assertion I made that the “AIIA’s position on IPR represents the aspirations of the world’s largest, multi-national IT vendors.” As Birks sees it, this statement unfairly paints AIIA’s position as uniquely focused on the desires of large multinational IT providers when the AIIA is representing a much broader group of industry participants, particularly local small and medium enterprises (SME).
OK, duly noted. But this was a passing comment in a blog almost entirely dedicated to questioning the logic behind the AIIA’s own published reasons why governments should grant IP rights to suppliers as a default contract negotiation position. The point I was trying to make is that this is not a parochial Australian issue. Regardless of the composition of AIIA’s membership, or the process it uses to elect board members, the multi-nationals’ advocacy of this position on IPR means this is a topic of interest to readers outside of Australia. Needless to say, I really don’t think any more keystrokes need to be wasted on membership debates – it’s a red herring. The real issue is whether their position on IPR makes sense to the government – or any of their clients for that matter.
And on that topic, the needs of SME IT suppliers is a central theme in Birks’ rebuttal. So much so that he states:
“This SME consideration is connected with another fundamental point you seem to have skipped, which is that all Australian governments, and particularly state and territory governments, have a very heightened interest in supporting local ICT industry development through their activities and including in their procurement and policy positions.”
Birks’ position is based on the premise that providing benefits to individual suppliers manifests itself as a collective benefit to the industry as a whole. After all, that’s what they’re advocating – that individual suppliers are granted the rights to newly-created IP that the government paid for. But when it comes to intellectual property, things don’t work out that way. Suppliers can leverage this IP to obtain patents which grants them ownership over the underlying algorithms in the code they’re paid to produce. They can use non-compete clauses to keep staff with specific areas of commercial expertise from moving to competitors. The reality is that IP is increasingly being used as the basis to constrain competition rather than foster innovation. IP is also increasingly being used to source licensing fees from 3rd party product development rather than it being used exclusively for internal product development.
There is another very important dimension to IP that Birks perhaps doesn’t realize himself. Specifically, the value of IP increases with mass. Individual pieces of IP are notoriously difficult to value. But when they are combined into a portfolio they provide an organization a unique set of capabilities in their ability to seek license fees from third parties and to fend off requests to pay license fees themselves. The growth in IP portfolios is an indisputable trend in the IT industry.
But this is a particular problem for SME suppliers. It takes a lot of resources to be able to craft, maintain, and exploit IP portfolios and that essentially limits this activity to all but the largest organizations. That means that Birks’ assertion that:
“In truth, the freeing up of IP on a specific piece of Government business is highly unlikely to be a make or break issue for a multinational as their ICT business models are varied and diverse…”
is not actually correct. For one, we are not talking about specific pieces of government business. We are talking about the collection of IP coming from all government business. That will naturally be much larger for the big multi-nationals because of their market position. More importantly, it is these organizations which have the resources to exploit these assets in the context of a larger IP portfolio. The differences in business models are immaterial.
Therefore, if the broader objective of the AIIA in advocating the changes to IPR policy in procurement policy is to support local SME ICT suppliers, than this strategy is misdirected. In fact, I can think of no better way to harm local SMEs over the long term than to gift, by default, the rights to newly-created IP to suppliers. The growing use of IP portfolios will create one of the biggest obstacles to SMEs in their ability to freely innovate and to flexibly respond to market requirements.
On the other hand, supporting local SMEs could be achieved if the AIIA insisted that newly-created IP from government contracts was placed under an open source license agreement by default. That would provide open access by SMEs to the IP even coming from contracted business with the largest multinationals. Such a position is entirely consistent with The Statement of Intellectual Property Principles for Australian Government Agencies. But such a suggestion is nowhere to be found in the AIIA’s white paper to the NSW Government.
But the part of Birks’ response that I find most troublesome is the point where he says:
“It is very progressive of governments in Australia to recognise that the IP is far more sensibly held by the supplier in the vast majority of cases. Those governments that follow this course of policy are directly recognising that they are not typically in the business of commercialising IP and that by being innovative in this sense that they are providing a very real support to local ICT industry development.”
This can only be described as squatter’s logic. It’s the belief that if you don’t use your property in the way I would use it then I have a valid claim over it. This is the thinking that pervades the AIIA’s position on IPR.
I’m operating from a different principle – no one has the automatic right of ownership for something that someone else pays you to produce for them. Nor does a person, or organization, have the right to dictate to their customers the manner in which their property should be used.
Do I believe that a nuanced approach to IPR can help organizations achieve broader strategic aims? Absolutely! But progressive organizations don’t do that through isolated procurement policy changes. Progressive organizations focus on establishing, and implementing, comprehensive IP management programs. Doing so allows them to understand the value of discrete pieces of IP. That would allow an organization to quarantine IP that is important in differentiating itself. It would allow organizations to seek a fair market price for IP that they grant to to third parties, like their IT suppliers. It would allow them to assess the broader benefits of providing open access to the IP.
The bottom line is that the AIIA’s position on IPR will result in some short term gains in expediting ICT contract negotiations. That will come at the long term cost of a needless loss of assets and revenue to the Australian taxpayer. And the benefits which supposedly will flow to local SME suppliers are not only dubious but impossible to quantify. The trade-off is simply not worth it.
There is nothing that Ian Birks or the AIIA has said so far that would have me change that assessment.
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