Brian Prentice
Research VP
9 years at Gartner
26 years IT industry
Brian Prentice is a research vice president and focuses on emerging technologies and trends with an emphasis on those that impact an organization's software and application strategy... Read Full Bio
by Brian Prentice | November 5, 2010 | 3 Comments
Last week Horatio Gutierrez, Microsoft’s Deputy General Counsel, made some interesting comments regarding the intellectual property implications of cloud computing. One insight that I think is particularly profound is that the ability of patent holders to detect infringement is going to become much harder. That makes a lot of sense. After all, cloud computing is about the provision of IT-enabled capabilities as a service. Trying to determine if your patents are being infringed upon if they are components supporting a cloud service will very difficult.
Does that mean organizations committed to building, and exploiting patent portfolios are going to be chucking in the towel while saying to themselves, “oh well, this patent thing was good while it lasted.” Doubtful…very doubtful. In all likelihood they’ll be shifting their focus to those patents which will be easier to take advantage in a cloud computing environment. Gutierrez made exactly this point when he said:
IP to do with the user interface – the part of the service that’s actually exposed – will become more important, and will become the identity of the person providing the service. We need to go back to our toolbox of IP rights and dust off some.”
I think he’s right. And I think you – the enterprise IT organization – had better absorb this quickly. Why? Because if you think the cloud computing phenomenon is strictly about IT vendors delivering infrastructure, platform and software services to you, then you’d be missing a key part of its disruptive potential. Cloud computing enables every company – whether they’re IT providers or not – the ability to deliver their own IT-enabled capabilities. IT-enabled supply chain services, for example, might just as readily be consumed from supply chain management companies as they will be from SCM application providers that offer a cloud computing option.
The seemingly never-ending stream of patent infringement cases has largely been a sideshow for enterprise IT organizations. This has been saga played out between the IT vendors and only rarely becomes a problem outside that community. But the expanding desire of IT vendors to directly commercialize their IP portfolios will slowly start to erode the reticence they have had in pursuing organizations they currently deem as being their customers.
And here’s the thing – cloud computing, over time, will blur the lines of what it means to be an IT provider. And that means every organization becomes a potential patent infringement target for those companies with portfolios bulging with UI and design patents. The chances of stumbling into a UI-related infringement action will be very easy given both the range of overly-broad patents in this area and the serious lack of attention that most non-IT vendors pay to their own potential infringement in the realm of information technology.
Sadly this will likely drive more organizations to start building their own patent portfolios. After all, one of the most consistent motivations for organizations’ interest in creating, and growing a patent portfolio is to secure a meaningful defence against patent litigation.
The patent arms race will only continue.
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by Brian Prentice | September 16, 2010 | 2 Comments
Travelling through South America at the moment I was struck by a couple of statements which are being attributed to Microsoft’s President of Latin America, Hernán Rincón (here’s the report in Portuguese).
I really hope that he was either misquoted or something was lost in translation because in a meeting with Latin American journalists, Rincón says, in comments targeted at the Brazilian government, that
when you do not can compete, you are declaring open. This masks incompetence.
Hold on Mr Rincón, to quote Microsoft’s own stated position on open source:
We are actively participating in open source and share the common industry view that software users will continue to see a mixed IT environment of open source and proprietary products for years to come.
And a quick look at the list of their open source projects shows a pretty comprehensive number of initiatives across a very broad range of their product portfolio.
And here I was thinking that Microsoft was demonstrating a nuanced understanding of open source that was deftly supporting the company’s strategic aims. Could it be I was wrong and they’ve just been masking their incompetence all along?
He goes on to add that
free programs require more work and investment from the government to keep them running and updated – which does not happen when companies take care of that for the government.
This, of course, is just bizarre. There are many, many IT staff in government who are needed to run and update proprietary software. And a fair percentage of those people are software developers using Microsoft technology and products to create needed solutions which will never be run or updated by Microsoft themselves. Not only that but those solutions could easy be placed under one of Microsoft’s own open source license agreements – like Ms-PL or Ms-RL and posted on Microsoft own open source hosting site Codeplex.
But the insights don’t stop there. Rincón also says, “governments have to ask: what business is to serve their citizens and develop software? Innovation is at private sector. ”
Thank goodness the US government didn’t considered this advice prior to inventing the internet.
For Microsoft’s sake I sure hope this was a misquote. They don’t need their own executives shooting their open source foot
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by Brian Prentice | August 24, 2010 | 3 Comments
Last week Gartner launched our special report on Application Overhaul (a Gartner subscription is required). There are a number of different facets to this research – how to strategize, modernize, rationalize, standardize, govern and simply the application portfolios managed by enterprises today.
I’m the guy working on the simplicity workstream.
So, I thought I would try and kick off an ongoing conversation about application simplicity on the Gartner Blogger Network by disagreeing with a giant on the topic of design, Don Norman (author of books such as The Design of Everday Things, Emotional Design: Why We Love (or Hate) Everyday Things, and The Design of Future Things).
I hate to do this but I have no choice! Because while I’m saying that simplicity is absolutely essential in the way we plan and construct applications, Norman is on record saying that simplicity is overrated. Specifically, he says:
Why do we deliberately build things that confuse the people who use them?
Answer: Because the people want the features. Because simplicity is a myth whose time has past, if it ever existed.
He goes on to make the point:
Make it simple and people won’t buy. Given a choice, they will take the item that does more. Features win over simplicity, even when people realize that it is accompanied by more complexity
The essence of Norman’s initial point is perfectly valid – people want features. But in reality they only want features that make a product do what they want it to do. They’re not interested in the features needed to get the product to do things that other people want it to do.
But Norman presents a false dichotomy – it’s either features or simplicity. Inherent in this position is a view that simplicity’s primary characteristic is the absence of features. In fact the defining characteristic of simplicity is the relevance of features. An increase in features is not mutually exclusive with simplicity. It is only when the next additional feature has no particular value to the majority of it’s intended audience that you enter into the world of confusing products.
Simplicity’s biggest obstacle is not fickle customers. It’s lazy design. It’s really hard to craft product segments based on the careful observation of people, the challenges they face and the varying different capacities they have using a product. So product developers don’t bother. They either throw every conceivable feature into a product and let a user interface designer, or the customer, figure it out. Or they segment features based on marketing-crafted product bands which are created not with people in mind but on margin maximization.
So, is it true that when given a choice people will take the item that does more? That, of course, depends on how the choice is being framed.
In his article, Norman highlights a specific example of a Siemens washing machine which was purposely designed with more controls and buttons even though the machine could effectively automate most everything itself. According to Siemens usability expert, automation was akin to a loss of control (how uniquely German). But Norman goes on to make the following observation:
Would you pay more money for a washing machine with less controls? In the abstract, maybe. At the store? Probably not.
That is not a question about the value of simplicity. That is a question of justifying a company’s banding strategy. If your goal is to get a customer to pay $2000 for a washing machine then yes, I guess I can understand the desire to add some fancy doohickies.
Of course, this example obviously misses the alternative most people would prefer to be presented with – is there a lower-priced option that only does the stuff I need it to do. What is that right mix of price vs. features? Ah, there’s the hard work. But banding is the easy way out. And if a low-end product exists only to capture customers not prepared to pay for the premium product then chances are it won’t be successful. And chances are that a bunch of marketing types will be saying to each other, “see, people want more stuff – we made it simple and they didn’t buy.”
But if the work is done to understand the customer and what they need then you get a different result. Just consider something like the Flip Video Camera. Here we have a product, designed to simplify video by removing features superfluous to the requirements of many people while being offered at a much lower price. The result – a highly successful product which is now being copied by competitors.
Where Norman and I agree is in the importance of design. But most technologists see design as being an aesthetic and structural activity. That all we need to do to tackle complexity is to re-order, re-package and re-present a growing list of features.
But what I’m asserting is that complexity will never be tackled, nor simplicity achieved, without a central focus on conceptual design. The central question of design is not how a product does something but why it does it in the first place. And that question can only be answered with an intimate understanding of the people we’re designing for. If we get conceptual design right than what naturally falls out is the realization that every product has an inherent functional vanishing point. Identifying that is the essence of simplicity.
Make no mistake – simplicity is not overrated. It is critical. And while I’ve been looking at the consumer product space in this blog, the lessons here are as relevant to the enterprise IT organization and the technology they manage. Simplicity equals relevance. And IT organizations that continue to ignore this will find that they will have a growing relevance problem with their users.
Category: Feature-itis & The Design Imperative Tags:
by Brian Prentice | August 13, 2010 | 3 Comments
Ho hum, another day, another patent infringement suit. I’m becoming de-sensitized.
And we all know the cycle by now. File infringement action, issue press release, enter cone of silence while negotiations take place, work out cross license agreement, issue press release, provide no further detail.
But with news of Oracle’s patent and copyright infringement action against Google one thing strikes me as different. Oracle is not a company that has made a sport out of pursuing cross-licensing agreements off the back of infringement actions like Microsoft has. The most notable example was their action against Alcatel-Lucent which was settled before a trial. Besides that, there’s not much else in the way of other offensive patent actions.
But there’s another case that might be more relevant here. Oracle v. SAP – specifically the action they took after SAP had purchased 3rd party Peoplesoft/JDEdwards support provider TomorrowNow.
Why is this relevant?. First off, Oracle’s primary issue was copyright infringement – TomorrowNow was using Oracle’s copyrighted material in order to provide support at significantly lower prices to Oracle customers. Oracle clearly had no intention of working out a deal with SAP. Instead they hammered them in court. That resulted in SAP shutting down TomorrowNow and losing their investment.
But that’s not all. Just last week SAP made a legal filing agreeing that they were prepared to pay Oracle tens of millions of dollars in compensation. Oracle’s view? Nice try, but we’re looking for BILLIONS of dollars in damages.
So before we write off Oracle’s action against Google as another attempt to obtain a tidy little license agreement let’s realize that we could be dealing with an IP pit bull here. If Oracle sees Android as being as much a strategic threat to their business as TomorrowNow was, then this has a higher probability of making its way to the courts than your average infringement action.
If it does, and if they prevail, then look out Google!
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by Brian Prentice | August 8, 2010 | 1 Comment
Having just read two recent articles on why software patents need to be abolished, I thought it would be worth pointing out that there’s something a whole lot worse.
Trade secrets.
To be clear, I have no disagreement with the underlying principles of the anti-software patent argument. I share the view that innovation must be fostered. But the history of innovation in the IT industry is much less a story of the free flow of ideas than the free flow of labor.
Like the making of the American West, the IT industry is largely a story of pioneers. Where would we be today if Gordon Moore and Robert Noyce hadn’t left Fairchild Semiconductor to start Intel? And Fairchild Semiconductor only existed because of a staff exodus from Shockley Semiconductor Laboratory. Whether we’re talking about the founders of start ups or the staff they hire as they expand, it’s been people’s willingness – and right – to pull up stakes and start again that has allowed great ideas to manifest into great products and great companies.
And that is why I’m much more concerned about trade secrets than software patents. Inherent in the execution of a trade secret strategy is the limitation on the free flow of labor. It’s trade secret practices that are responsible for those non-compete and non-disclosure clauses in your employment contract.
And if you think that software patents and trade secrets aren’t intricately intertwined then think again.
The IT industry is now an economic powerhouse dotted with organizations and individuals with unimaginable wealth, power and influence. History has shown, time again, that this type of combination foster efforts to distort markets and maintain the relative power of the status quo. Particularly through the political process. This has happened with the industrialists of the late 19th century, the East India Company in the 18th century and with guilds in the middle ages, to name a few. I see disturbing signs of this occurring with the IT industry today.
Should software patents be abolished it won’t mean we’ll be working in the Elysian Fields of pure, unrestricted innovation. If history is our guide I believe that these moneyed interests will redirect their attention to protect their assets – which are largely intellectual property – by seeking to transform and fortify trade secret law. Particularly as copyright offers a diminishing capacity to protect assets (thank you open source software). The thought that powerful IT players would not respond to an abolition of patents without some reciprocal effort to protect their interests I consider to be naive. And the thought that all forms of IP protection will disappear is down right fantastical. Maybe that’s possible on Pandora, but not here on planet Earth.
Now, if a handful of influential media interests can alter copyright law through things like the Copyright Term Extension Act and the Digital Millennium Copyright Act and even get lawmakers to push their agenda on other countries through Free Trade Agreements I’m afraid I don’t hold much hope for the future of things like California’s ban on non-compete clauses once powerful technology lobbyists focus their attention on eliminating them. Just look at the lobbying effort that has gone on in the State of Massachusetts since they’ve considered outlawing such clauses.
If we all care about supporting innovation then we need to see software patents within a broader framework of IP rights. And we should be advocating action which is politically and economically realistic. I am happy to concede the limited monopoly of ideas if it secures the mobility of labor. The reverse is a truly frightening proposition.
That is why I think we should be focusing our collective effort on banning all restrictions on the rights of people to work where they want, when they want. As a concession to technology businesses we must allow software patents to exist. Such a position does not require one to accept the rubbish software patents in existence today or the broken system which granted them. Rather it necessitates fixing the oversight of the system so we can have a much smaller set of novel and non-obvious innovations that are discoverable and understandable.
Category: The Future of Ownership - IP & IT Industry Tags:
by Brian Prentice | August 5, 2010 | 10 Comments
Has anyone else noticed these days that you can’t have a competition for children and only reward the top achievers?. Apparently, handing out ribbons for 1st, 2nd and 3rd place can negatively effect the self-esteem of all the other kiddies. So everyone gets a special award for participation – even if they failed miserably or couldn’t finish.
Maybe the average age of Google employees is proof that they grew up with this type of reward system because it sure seems they want a special participation award for their efforts with Google Wave. Just consider their announcement of the product’s demise. They talk about their gee-whiz features like playback. They remind us how “jazzed” they were internally and how they “enabled” third party developers.
Too bad that “Wave has not seen the user adoption we would have liked” (whatever that was). That doesn’t matter. At least they tried.
No apologies for wasting people’s time. No effort to make alternative arrangements for those invested in the product. It’s “look at me, look at me – I’ve just crossed the starting line.”
Not that there aren’t those out there ready to give Google a big E for effort. Karim R. Lakhani at Harvard Business School “applaud(s) the company’s decision to pull the plug after it was clear the market wasn’t interested in Wave.”
Well sorry, I don’t buy it.
Google Wave was a launch of phenomenal proportions and that means that its a failure of phenomenal proportions. That, however, was not a technical failure. The code is still out there and Google certainly got a lot of insight that they’ll be able to apply to other products. No, this was a behavioural failure of the highest order. And the crux of the problem is not that they decide to pull Google Wave – it’s that they launched it in the first place.
Let’s face it. Google Wave was the IT industry’s noisiest beta testing program. But as Guy Kawasaki points out, it doesn’t matter when you go into beta testing – what matters is when you come out of beta testing. And there was a mountain of evidence to prove to Google that Wave would never come out of testing. Certainly there were a lot of commentators questioning whether the capabilities of Google Wave were comprehensible to average users and whether actual usage would look anything like the slick demos. And there were others, myself included, that pointed to evidence showing that the simple emergence of a new and “improved” digital collaboration tool doesn’t change collective behaviour in it’s own right. Even Lars Rasmussen, the lead developer of Google Wave admitted that email, the technology he had such a problem with, emerged over the course of 40 years.
And yet the product was released to the masses. And not in a small way. As the interest in Wave exploded and user accounts expanded one has to wonder whether Google stopped to think what might happen to all those people if the product didn’t pan out. At a minimum there should have been some appreciation for the time and energy that people were investing in Wave and, therefore, investing in Google. And with that, one would think would come a sense of reciprocal responsibility. Especially since a cloud-based offering like Wave which is brought to an end-of-life must inevitably be turned off leaving those who actually built workable solutions in a lurch.
The only way I can reconcile their behaviour is to conclude that Google’s corporate culture puts a higher premium on the needs of their engineers than their responsibility to users. Launching Google Wave seems now to have been an exercise in providing the Wave development team with both public accolades and an army of unpaid testers that would help them in their future endeavours.
If, on the other hand, Google was primarily focused on their responsibility to users than there would have been significantly more design work, user analysis and testing upfront. That would have taken time. It would have been costly. It probably would have presented the development team with significant new challenges that they weren’t expecting. It may have delayed the product for months, maybe years. I could have killed the project before it saw the light of day. It would also have been the right thing to do. But apparently there seems to be a view at Google that users are part of their fail often-fail fast model of innovation.
If that’s your cup of tea – helping Google figure out what works and what doesn’t – then this obviously doesn’t rank as a matter of great concern. But if you’re someone who believes that the effort a technology company puts into preparing a product for market and it’s willingness to stick with it once released is indicative of its commitment to its customers than the demise of Google Wave should give you pause to think.
Is Google the type of company you want to rely on?
So tough luck Google. No participation award for you. Instead you should go straight to your room and think about what you did. And you can come out when you’re prepared to say sorry and can show you learnt from your mistakes.
And it better be sincere.
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by Brian Prentice | July 19, 2010 | 1 Comment
It’s nearly a month and I’m just getting around to posting my thoughts on the Bilski decisions. Mind you, being on an extended holiday is my excuse. But while I was trading winter in Australia for the blistering heat of the Eastern US, I did have a chance to read through the Supreme Court’s ruling and to reflect on its meaning.
Once the Supreme Court decided to hear the Bilski case, both sides of the patent debate where hoping that their position would finally prevail while, at the same time, being deeply concerned that the other side would emerge victorious. Bilski, as of June 28th, was a high stakes proposition. On June 29th both sides were left scratching their heads wondering what exactly just happened.
Compromise, it’s said, is the art of making sure everyone is unhappy. But while the Bilski ruling meets the unhappy criteria it could scarcely be considered a compromise. Except for deciding that the “particular machine or transformation” test was a key consideration in determining a method’s patentability rather than being the only one, nothing was really reconciled. But neither could Bilski be considered a cop out given the highly considered and deeply intellectual arguments of both Justice Kennedy and Justice Stevens. Both men argue eloquently – one for the historical precedence that would preclude business methods from being patentable and one for for the necessity to maintain an adaptive and flexible approach to patentable subject matter. The crux of the problem was clearly highlighted in the following statement:
This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.
Ultimately, the Bilski ruling is a stalemate. The Supreme Court simply couldn’t rise above society’s own conflicting perspectives on the nature of patent protection in the digital 21st century economy. They seem prepared to confirm the right approach when they see it, but are unable to establish such an approach on their own.
The fundamental challenge that emerges from the Bilski v. Kapos decision is who should be crafting that approach. It seems that the default position of many is that this requires more tinkering on the part of the Patent & Trademark Office and the lower courts. But I believe that vesting the responsibility to resolve this challenging issue to the bureaucracy and the judiciary will only exacerbate the problem.
Patents are ultimately about inventions and inventors. But you wouldn’t know that today. The patent system seems to have been absconded by the legal profession. Those doing the actual innovation seem to have become merely a backdrop in a lumbering system designed primarily for its own self-preservation. You know things are getting bad when an inventor is unable to understand the patent filing for his or her own work.
As legal complexity becomes increasingly woven into the fabric of intellectual property, there seems to be a mass acquiescence on the part of inventors and business leaders. I see it all the time – it’s the “don’t ask me about IP, that’s the lawyers department” response I hear so often.
But if those very same inventors and business leaders hope for the system to change they will need to stop waiting for the Supreme Court to fix this up. Instead, they’ll need to stand up, engage with one another and find meaningful compromises that can be manifested through the legislative process (note – I’m not referring to the current Patent Reform Act in Congress which I see as 10% reform and 90% reallocating the cost of a broken system to a different set of organizations). What we need is a system that is simplified, made accessible and understandable – one that fosters innovation rather than billable hours. The legal community can’t do this and won’t do this.
There is no easy route here. It is my sincere hope that the pain being felt by so many outside the legal profession will spur them to take ownership to fix our creaking, expensive and uncertain system. As they do they’d do well to remember Edmund Burke’s wise words from over two hundred years ago:
It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.
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by Brian Prentice | May 18, 2010 | Comments Off
A couple of hours ago Microsoft announced that they are filing legal action against Salesforce.com for the infringement of nine of their patents. This is only the fourth time that Microsoft has proactively filed a patent infringement action. The patents Microsoft has included are:
Salesforce.com are not prepared to comment directly on this development. But it should be noted that they made the following statement in January of this year in an 8-K filing to the SEC:
“During fiscal 2009, we received a communication from a large technology company alleging that we were infringing upon some of their patents. We continue to analyze the potential merits of their claims, the potential defenses to such claims and potential counter claims, and the possibility of a license agreement as an alternative to litigation. We are currently in discussions with this company and no litigation has been filed to date. However, there can be no assurance that this claim will not lead to litigation in the future. The resolution of this claim is not expected to have a material adverse effect on our financial condition, but it could be material to the net income or cash flows of a particular quarter.”
Of course, patents need to be run through the courts nowadays before their claims can be considered valid. But just assuming for a minute that Microsoft’s patents do hold up in court I think Salesforce.com statement in the 8-K filing, assuming they’re talking about Microsoft, is a little on the optimistic side regarding the potential impact. Microsoft is claiming that Salesforce.com is infringing in such critical areas as data mapping, permission management, software updating and user interface design. That cuts to the heart of many of Salesforce.com’s key value propositions.
Additionally, when I spoke with Horacio Guiterrez, Microsoft’s Corporate Vice President and General Counsel, a couple of hours ago he clarified that there is one important part of Microsoft’s patent portfolio where they’re not inclined to pursue patent cross-license agreements – user interface technology. So odds are that unless Salesforce.com is willing and able to alter key areas of the user experience to Microsoft’s satisfaction than this is likely to end up in court.
And that is exactly where I’d like to see this go! Microsoft has consistently claimed that their patent portfolio is of the highest standard. But when pushed, most organizations prefer to take Microsoft up on a license agreement than fight things out in court. This time we might have a solid opportunity to see Microsoft’s claims of patent quality put to the test. Nine patents do not a portfolio make mind you. But I think a big, ugly and high stake case involving Microsoft’s own patents is exactly what this industry needs to see.
The other observation I can’t help but make is the nature of the competitive relationship between Microsoft and Salesforce.com that this action implies. This legal action seems to me to be a level of hardball that well eclipses their patent position relative to Linux. In that area Microsoft has tended to focus a lot more sabre-rattling and license agreements than a direct “see you in court.” I also can’t help but think, given the nature of the patents stated, that there are plenty of other SaaS providers also infringing. Why not announce legal action against a couple of SaaS vendors to stake a position relative to the SaaS market overall?
Personally I find it very hard to believe that the strategic value of who is being sued does not, at times, factor into Microsoft’s total calculus of determining where to aim their patent infringement actions. And if that reading is correct than clearly Microsoft has some deep concerns about Salesforce.com’s trajectory and what it means to their own cloud aspirations.
It looks likely that this case will weigh heavily in determining how that battle shakes out.
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by Brian Prentice | May 7, 2010 | 1 Comment
Two days ago, at the Web 2.0 Expo, Adobe’s Kevin Lynch (CTO and SVP, Experience & Technology Organization) made the following comments in relationship to Apple and his view that they want to created a “walled garden” on the web:
If you look at what’s going on now, it’s like railroads in the 1800′s. People were using different gauged rails. Your cars would literally not run on those rails. That’s counter to the web. The ‘rails’ now are companies forcing people to write for a particular OS, which has a high cost to switch.
Lynch’s analogy is very relevant. But not for the reasons he seems to be alluding to.
By 1860 there were seven different rail gauges in use in the United States. This was not the result of a conscious effort by railroads to avoid national standardization. Rail companies like the ones we learned about from playing Monopoly (Pennsylvania Railroad, The Baltimore & Ohio Railroad, Reading Railroad, Short Line) emerged by serving local markets. Different gauges were not a problem until the networks expanded to the point where carriages needed to cross different railroads. But by that time the problem was entrenched. And given the cost of changing the existing track, each railroad wanted everyone else to adopt their gauge as the standard.
To overcome the lack of gauge standards, cargo had to be unloaded from the carriages on one network to those on another. This 19th century version of infrastructure integration became an industry in it’s own right. Interestingly, it was these rail integrators that most strongly opposed the move towards any standard. After all, it meant the end to their livelihoods. In fact, moves to standardize the gauges led to riots in Erie, Pennsylvania in 1853 – a city where three different gauges converged.
Eventually the standard gauge of 4’8.5” emerged. But it didn’t happen because railroad tycoons agreed on a gauge standard. It happened because the U.S. Congress mandated that gauge for the new rail network know as the Union Pacific. The original congressional act gave President Lincoln the power to decide on the gauge which he established at 5’. That power was rescinded by Congress which then set the gauge standard to what it is today as a direct result of intense lobbying by the large Northeastern railways. So it looks like corporate lobbying was as effective in 19th century America as it is today.
So, what lessons do I take away from Lynch’s railway analogy:
- When infrastructure of any type emerges in a free market environment the only standard of any importance is ubiquity
- The benefits of being the ubiquitous standard and the costs of having to convert to it are enormous. Therefore, in a free market environment, companies will do whatever it takes to achieve the former and avoid the latter.
- Demand-side mandates are significantly more powerful in establishing standards than supply-side accords.
- The most significant demand-side mandates come government funded national infrastructure initiatives. But when governments establish standards in this way the politics of money and influence will have a significant impact on the decision making process.
As I would apply this to the Apple v. Adobe stoush:
- Apple and Adobe’s current disagreement has evolved over time.
- Each company made pragmatic design and technology decisions to secure the market viability of their products and over time and both were successful in establishing ubiquitous standards in their respective areas.
- Now that those areas are overlapping both are engaged in a battle to keep from having to cede their ubiquitous standard to the other.
- Its unlikely that a demand-side mandate will emerge any time soon. But in the event it does it is in the best interest of both Apple and Adobe to keep driving their standards against the other as market clout will have an impact in the decisions made on the demand side.
- Establishing standards creates losers. And the biggest losers are the ones that act as brokers between incompatible systems. At the moment, Adobe looks a bit more like a broker than a system provider.
The bottom line here is that both Apple and Adobe are acting in an entirely predictable fashion in remarkably similar ways to achieve essentially the same objective because both organizations are equally effected by common market forces.
For either party to paint itself as somehow holier and more open than the other is really an insult to everyone’s collective intelligence.
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by Brian Prentice | April 29, 2010 | 3 Comments
Remember the Android mobile device platform circa 2008? That was Google’s open source masterstroke. Backed by the Open Handset Alliance, it was set to commoditize the mobile operating system market and break down barriers between the mobile internet and their search-based advertising business.
Fast forward to 2010. Now we have the Android mobile device platform – lightning rod for patent infringement actions. This is Google’s open source miscalculation. It’s putting members of the Open Handset Alliance into a patent infringement purgatory, while showing to one and all the limitations of using open source software as a tool to commoditize your competitors’ business.
Now, before all you anti-patent advocates get worked up let’s just me just say your concerns are duly noted. But so long as software patents exist they need to be factored into the planning process for new open source projects. Particularly when their impact will be highly disruptive to well-established players. That, by the looks of things, simply didn’t happen with Android. So what…did everyone contributing to Android just forget to check? Maybe everyone thought is was someone else’s responsibility. Or could it be that everyone involved with Android just didn’t think patent infringement was going to be an issue this time around? It’s got to be something because there was enough collective knowledge in that group to recognize that the mobile device space was covered by a maze of patents.
As I see it, I don’t think HTC’s patent problems with Android can be understated. I think it puts a serious crimp in Android’s game plan and, by extension, will force a massive, industry-wide rethink on how to use open source strategically.
What’s important to note here is that neither Apple or Microsoft has gone after Google, the center of gravity for the Android project. They’re going after the organizations using it – the manufacturers. Last week GigaOM posted some interesting insights into the Android’s fragmentation problem. The patent issues are only going to exacerbate this. Each manufacturer will have their own strategy to deal with the patent claims of other organizations as they each have their own patent portfolios (or lack thereof) to base those decisions on. By necessity then, Microsoft and Apple’s approach with Motorola will probably be very different.
The net result isn’t pretty. Google may be the centralizing agent for Android code development but IP risk assessment ends up being distributed and duplicated across the entire handset alliance. That means further problems for unified adoption because some manufacturers will likely be more exposed to potential infringement actions or licensing agreements. On the other hand, there’s an increased chance of manufacturer-specific Android forks emerging from those that have patents they wish to exploit in their own Android handsets. While this type of project diversity is generally welcomed in the open source world, it will only undermine Android as a viable development platform. And that outcome ultimately hurts everyone involved in the handset alliance.
The solution, of course, is to centralize IP risk assessment and IP risk mitigation. And that is the open source rethink I’m referring to. The community model for all future open source projects of any note can no longer be focused strictly on code development. From here on out it must also include IP management. That means patent assessors will need to join the ranks of code committers. Prior art detectives will be as valued as code contributors. Patent pools will need to be bound to projects and shared indemnification systems will need to be devised.
That begs a particular question. If one organization insists on playing a dominant role in a project’s community how much of the responsibility for overseeing these IP issues falls on them? And that throws the spotlight for this whole situation right back on Google. What, if anything, is Google doing to assess the patent rights of others through their ongoing development process? If something is being done then why doesn’t there appear to be an indemnification system in place – even if it’s limited in nature? Is Google filing new patents connected to their Android development? If so, will they be pooled into a patent commons?
Google has chosen silence on this entire matter so it’s impossible to know what they’re thinking or planning. For everyone’s sake I sure hope there’s something cooking because this issue isn’t going to stop with Android. It’s now looking like there will be similar problems for Google’s VP8 codec. A lot of the good work Google has done in pushing open source will start to unravel if they’re seen as throwing the rest of the community to the lions while passively watching them get devoured.
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