"The Patent Reform Act will harm the U.S. technology industry"

Steve Tobak posted an article about the upcoming Patent Reform Act over at C|Net. I had just mentioned intellectual property reform a couple of days ago in this previous blog entry.

Interestingly, I disagree with Steve's analysis. Steve says:

Let's instead just cut to the chase. In lay terms, the bill makes it easier to challenge issued patents and harder for patent holders to obtain compensation through the U.S. legal system.

Steve argues that because the US is shifting away from a production economy to an intellectual property and licensing economy, these "reforms" are bad for US business. Steve says:

In one corner are big technology companies such as Apple, Cisco, Dell, Google, HP, Intel, Microsoft, Oracle and SAP. These folks make a living selling products and services. They say that patent abuses in the current system are stifling innovation.

In the other corner are technology licensing companies such as 3M, Qualcomm, Rambus, Tessera, and biotech and pharmaceutical companies. They say the act will limit patent holder's rights and stifle innovation.

While each side claims the other limits innovation, the truth is that neither side cares about innovation; they are only concerned with their business model. That's not necessarily a bad thing, since a company's duty is primarily to its shareholders, but it does bear mentioning here.

Now, I have lived in the technology industry for quite some time. I have never worked at a large technology licensing company such as 3M, Qualcomm, Rambus, or in biomed or pharma. That probably biases my thinking.

On the other hand, I have about 10 patents, assigned to various companies I have worked for over the years. I have spent a reasonable amount of time dealing with the patent system.

The fact is, many patents are bogus (think Amazon's 1-Click patent). There, I said it. Many should not have been issued, either because they are so obvious to those knowledgeable in the art or because there was existing prior art. These bogus patents are a noose around the neck of the technology industry. They clog up the system and make it impossible to create almost anything without treading on somebody's patent without even knowing about it. With a patent term of 17 to 20 years, these bogus patents are in force for multiple product lifetimes. For perspective, 20 years is 10 to 13 turns of of the Moore's Law crank. Patents expiring now would have been issued back in 1990, before the explosive rise of the Internet (though the Internet was actually being used at that point, nobody outside of academic and tech circles had heard of it). If you don't think that stifles product innovation, you have never tried to innovate. I have lived with this environment all of my career. I have made decisions in the past to navigate around bogus patents, simply because the lawyers told me it was a lost cause to try to challenge them.

What's all the more infuriating about the current patent situation is that many of today's patents go against the original social contract surrounding patents. The original goal of the patent system was to get inventors to share their innovations for the common good. In return for a limited monopoly, you, Mr. Inventor, share your invention so that We, the public, can understand how you did it and can then innovate on top of it. Rather than stifling innovation, patents were supposed to drive it forward.

Unfortunately, many patents, even the ones that are legit, would have been created independently anyway. It's obviously a balance, but at least in the world I live in, I see patents getting in the way rather than helping me. I have never gone and looked at old patents to get new ideas for products. The only time an independent patent, one that I'm not working on filing myself, comes to my attention, it's because somebody is getting sued for infringing it. This tells me that we have lost the original goal that patents were supposed to foster.

Now, it's important to realize what the patent reform act doesn't do. It doesn't mean that patents are extinct. It also doesn't mean that bogus patents go away with a snap of the fingers. What it does do is allow for easier challenging of what appears to be a bogus patent. This may increase the cost of patent filings since more people could challenge the patent and you'd have to respond to it. Personally, I think this works. The costs should be weighted toward the party that has the most to gain from the granting of the patent. The downstream costs of litigating bogus patents (think not just lawyers but injunctions and product disruptions) are far higher than the cost of allowing patents to be challenged with greater frequency.

In short, I think the Patent Reform Act, while in no ways perfect (doesn't go far enough, IMO), is at least a step in the right direction. Admittedly, I don't work for a large intellectual property company or a biotech/pharma company. Perhaps I'd feel differently in that case, but from where I sit, if we really want to spur innovation, we should really overhaul the system even further than the Patent Reform Act.

Copyright law is broken

Timothy B. Lee has a great article on Ars Technica about the struggle to apply copyright law in modern times. Frankly, intellectual property law is not scaling well with today's technology. The US Congress is presently in the middle of a major patent reform project which I daresay will not deliver from the moment it's put in effect. Copyright rules have been moving around constantly, with the MPAA and RIAA doing all they can to go after "illegal" file sharing.

If you're interested in the subject of copyright, and you should be if you're interested in open source, I highly recommend Free Culture by Lawrence Lessig. This book opened my eyes to the problems facing all sorts of industries because of various unintended consequences of the current copyright laws. One of the key points in the book is that because today's current copyright law recognizes that all creative works automatically receive copyright protection for the life of the author plus a large amount of time afterward, virtually everything in modern life is copyrighted and therefore is subject to a grant of permission before it can somehow be recycled into another work.

This idea that culture builds on the culture of a few years ago, recycling it and re-synthesizing it into something new and modern is important. An obvious example is a redramatization of an old story plot into a new movie or book (reusing plots from Greek tragedy, for instance). In music, it's about resampling and remixing to create something new (Vanilla Ice swiping the Queen "Under Pressure" baseline for "Ice, Ice, Baby"). Think about movie and television shows that must "clear" copyright on just about every image or sound that is shown. This world is only getting more complex by the day, and it's hampering the world around us, often for no good reason because most people don't care about the copyrights they are granted automatically by the law. Sometimes it's impossible to find out exactly who owns a given copyright and so it's impossible to reuse that material legally.

Free Culture does a great job describing some of the problems and suggesting reform that would at least mitigate some of the problems.

Now, what does this have to do with open source? Well, all open source licenses (the GNU Public License, BSD license, Mozilla Public license, etc.) basically rely on copyright law for their enforcement. The primary difference between the GPL and code that is in the public domain (uncopyrighted), for instance, is that the GPL can grant a set of rights, subject to a set of proscribed responsibilities, to a distributor of a product that uses the code. Public domain code can be used for any purpose whatsoever and effectively nullifies the GPL's "viral" nature that forces you to release your code. You can combine public domain code with your proprietary code and it effectively becomes proprietary.

Now, in a world without copyright, you could use anybody else's code for any purpose and you would not have to release your own source. But once your own source got out, you could not stop people redistributing it or using it for any purpose.

It's an interesting thought experiment to think about what would happen if all intellectual property law was simply abolished. No more copyright. No more patents. No more trademarks. I'm not sure I'm ready to go to that extreme, but it's very clear that even laws that "worked" in the 1970s are no longer able to deal with the environment of 2008. But changing these laws will create tectonic shifts of power and money and so the wheels of progress move slowly.

Buy yourself a copy of Free Culture and expand your mind.

You spend 5 years and $250M and that's all you came up with?

Well, Cisco finally introduced the ASR 1000 family of routers this morning. It was, well, underwhelming. After a secretive ad campaign that featured the Easter Bunny, a bird man, a transvestite cupid, and a unicorn lady, I was geared up for something exciting. Instead, I got the ASR.

So far, most of my info has come from Network World, Light Reading, and Cisco's press release and data sheets. Here's how I see things:

• First, I would not hang it out there as a badge of honor that you spent $250M and 5 years on this thing. If you're a Cisco stockholder, you should be screaming bloody murder. I talked to an analyst today who pointed out how many start ups you could have funded with that cash and how much technology you would have gotten back in return. Cisco should be hanging its head in shame.
• It's positioned to replace the 7200, sort of. They'll still sell you the 7200 if you want, so it isn't technically obsolete... yet. Or you can pay something like 30 percent more for the ASR. Your choice. Light Reading says:

  "It doesn't have the performance of the 7600 at the higher end, and it doesn't have the price point of the 7200 at the lower end," Shetty admits. Moreover, he notes the ASR isn't a carrier Ethernet platform like the 7600.

• They spent 5 years and $250M but could only come up with a 10 Gbps router?
• The routing table size is only 1 M IPv4 routes and 250k IPv6 routes. So that means that it's less scalable than the 7200 and if the world converts to IPv6 tomorrow it's obsolete immediately because the current Internet routing table is ~250,000 routes already. Fire the guy who did that math.
• The ASR runs a new version of IOS, called IOS-XE. IOS seems to be breeding faster than tribbles on the USS Enterprise, in spite of Cisco's claims that they would actually reduce the number of IOS versions out there. Notably, IOS-XE is not derived from IOS-XR, in spite of the similar name. Rumor has it that it's the 7200 IOS running as a daemon on Linux. Network World notes the Linux connection and Light Reading says:

  Cisco did need to do something new to let the ASR run two copies of its operating system, something Shetty says hasn't been done before in boxes this small.

  In fact, it has been done in boxes this small for quite a while (ahem, Vyatta), years in fact. In fact, Vyatta uses true virtualization, rather than just running an old operating system in a single process.
• I just about sprayed coffee out my nose this morning when I was reading the Cisco press release:

  The Cisco ASR 1000 Series also enables service providers and enterprises to reduce their carbon footprint. By surpassing the capabilities possible in multi-device, multi-vendor solutions, the Cisco ASR 1000 Series dramatically decreases both the architectural complexity of deployment for service providers and enterprises but also their carbon footprints as well. Analysis conducted by Synergy Research found that, when compared to competitive offerings, each implementation of the Cisco ASR 1000 Series can result in carbon footprints savings up to 3754 gallons of gasoline or 17 tons of coal annually.

  Gak! Are we really at the point of computing carbon offsets for networking equipment? Are price-per-port or maximum-performance now passé competitive metrics? Coming to an Interop panel near you: "Well, how many cars did your router take off the road??" Or maybe in a future datasheet: "The ASR 1000 has a performance to carbon ratio of 38949 Gbps per coal ton." Sigh...

And here I thought networking was starting to get boring. Between the chicken-man and carbon offsets, I spent the morning laughing...

Open, Open, Open

It's the word of the day: OPEN. Last week, people started talking about Riverbed opening up its WAN optimization appliances to other 3rd party applications. Does anybody notice a trend? First, it was 3Com. Then Juniper and Cisco. And now Riverbed. Seems like a trend to me. Fortunately, Vyatta has that "open" thing covered.