Google still has a load of patents with which it can countersue any third party that isn't a pure-play non-practicing entity.
No, Google isn't a patent powerhouse. Its patent portfolio is only a fraction of the size of Apple, for an example, and even Apple isn't extremely big compared to some others. Look at this analysis, for an example:
In a recent investor note from Deutsche Bank, analyst Chris Whitmore compares the patent libraries of Apple, Google, and HTC. What he found was that in the past few years, Apple has been issued 3,000 patents, Google has been issued 316 patents, and HTC has been issued a measly 58 patents.
Also, if Google had the ability to do this, why would they stand on the sidelines when Android adopters such as HTC are being sued or when royalties are collected from them?
Some journalists, bloggers and Twitter users appear to have misconceptions regarding the way Microsoft Internet Explorer will support WebM.
It's certainly very positive for Internet Explorer users that they can play WebM video/audio provided that they have a codec (meaning, a plug-in) installed. That's what the Windows Team blog states as a technical requirement.
However, that just means flexibility for MSIE users and isn't a major breakthrough for WebM/VP8. Internet Explorer has always allowed plug-ins and I don't even know if it's ever tried to block one. So this isn't the same kind of endorsement of WebM/VP8 as if Internet Explorer came with WebM support on board. If that happened, it would also mean that there aren't any remaining concerns over patent issues. But that's not what has happened.
Keep in mind that you can also view H.264 with Firefox if you have a plug-in. The net effect of the whole HTML 5 video situation is that plug-ins will continue to play a role.
Google says it holds certain patents on the VP8 video codec that is part of WebM but there's no assurance that Google's patents are the only patents required. What about patents that third parties could assert? While it appears to be a nice gesture if a major player releases software on open source terms, it's imperative to perform a well-documented patent clearance.
Developers should be provided with detailed explanations why Google believes that no one adopting WebM will have to fear allegations of patent infringement. Otherwise those developers might be exposed to considerable risk. It wouldn't be possible to check on millions of different patents but at the very least I think Google should look at the patents held by the MPEG LA pool as well as patents held by some well-known 'trolls' and explain why those aren't infringed. Programmers have a right to get that information so they can make an informed decision for themselves whether to take that risk or not.
It's not unreasonable to ask Google to perform a well-documented patent clearance because they certainly have the resources in place while most open source developers don't.
The situation surrounding Android shows that Google might opt to stand on the sidelines if those adopting its open source technologies -- such as HTC -- are sued by patent holders. I can't find any promise on the WebM website that Google would come to the aid of third parties adopting the technology, so Google should at least help everyone to assess the risk.
We all know Steve Jobs' recent email in which he said a patent pool was being assembled to go after open source codecs. So the patent question is really a critical one. Also, this in-depth analysis by an X.264 developer shows that VP8 and H.264 are so similar that the risk of patent infringement could be substantial.
I have previously called for this kind of patent clearance, in connection with the open source Theora codec as well as with VP8, here on slashdot as well as on my blog, such as in this post.
While the DPL is still work-in-progress, I've posted this preliminary analysis of its possibilities and limitations. It remains to be seen if it offers a compelling reason for anyone to join.
As much as I regret to say it (btw, I founded the European NoSoftwarePatents campaign in 2004), I don't think this kind of resistance to H.264 is going to lead to a solution in the event some of the patents in the MPEG LA pool (just the H.264 pool contains 1,135 patents, and they have more pools under management there) get infringed by an alternative format that everyone would advocate, be it Theora or VP8. In that case, "the lawyers" would come out anyway to collect royalties and impose other terms and conditions.
As a result, whatever alternative that infringes on those patents would end up being unfree (neither free beer nor free speech) anyway.
The call for resistance to H.264 will make a great deal of sense if and when there is a reasonably reliable basis on which it can be assumed that a format such as Theora and/or VP8 doesn't infringe patents. While it's impossible to check on every one of the millions of software patents that exist around the globe, at the very least the proponents of Theora or VP8 (which Google might opensource very soon) should make a well-documented patent clearance effort with respect to the patents held by the MPEG LA consortium and explain why they their preferred codec doesn't infringe on those. Companies like Google or a deep-pocket non-profit such as the Mozilla Foundation could certainly do so if they wanted. I explained this thinking in a recent blog post.
Despite the typo with the excessive "i", the post was right on: those patents exist all over the world. It's not just that they exist, they also get enforced. Even in Germany, despite the fact that we (I founded the NoSoftwarePatents campaign in 2004) defeated a proposal for an EU software patent law, those kinds of patents get enforced quite aggressively. Every year at CeBIT, there are dozens of search warrants and confiscations, most of them related to MP3 and presumably an increasing number related to MPEG video codecs.
In recognition of the unfortunate realities that those patents exist and get enforced, I believe the proponents of other formats than H.264 -- be it Theora or be it VP8, in case Google opensources it -- would have to make some well-documented patent clearance effort and explain -- at least with respect to the patents held by the MPEG LA pool -- why their proposed codec doesn't infringe. I proposed so in a recent blog post, "Video codecs: Food for thought".
It may appear unfair and yes, it's harder to prove that there's no infringement than to prove that there is one, but I believe those propagating certain formats should accept responsibility for all third-party developers who might use their code and incorporate it, on open-source terms, into their projects and then run into serious legal problems. I wouldn't expect this kind of effort from a small open-source project but if there are large companies involved, or a deep-pocket non-profit such as the Mozilla Foundation, then I believe it's not unreasonable to ask them to do so instead of putting people at risk who would be unable to perform that kind of analysis.
It's true that the new <video> tag in HTML 5 would suggest that a standardized codec be used by all browsers claiming to be fully HTML 5 compatible.
However, the new tag could also be used (even though in a less useful way than otherwise) if there is, which is unfortunately the most likely scenario, no industry consensus on a single codec. Assuming that there are two camps (H.264 and Theora; or maybe three if Google pushes for VP8), web servers could then provide different Uniform Resource Identifiers for the files, based on the browser that makes the web page request; or the file names (thus the URIs) could be identical but dependent on which browser is in use, a different file could be provided.
I have discussed the HTML 5 aspects of this in a recent blog post, "Video codecs: The HTML 5 dimension". While I am against software patents (I founded the European NoSoftwarePatents campaign in 2004, I just try to take a realistic perspective on the fact that software patents exist and get enforced all around the globe (as far as codecs go, there's aggressiv enforcement even in Europe, such as dozens of search warrants and confiscations every year at the CeBIT trade show.
Idea should actually have to be novel and non-obvious.
Yes, that's the idea and that's what the law says, but every word gets a different meaning under patent law than it has from a common-sense perspective.
Large parts of what the average person would consider "obvious" is considered "inventive" under patent law. That's why different attempts on both sides of the Atlantic have failed to get those FAT patents revoked. People thought that maybe the courts would be more demanding in terms of the inventive step involved than the examiners at the patent offices, but the judges upheld the original decisions to grant.
The Infoworld article makes some good points but the issue is too big to claim that those two pages say all this fight is about.
The emphasis on multitouch (which doesn't rule out that other key patents are held by Apple as well) would be plausible. It's extremely difficult and rare for a patent holder to aim for total annihilation of a competitor. Patents are much more likely to be used against a competitor (i) to maintain a certain premium functionality (ii) or to impose license fees that make it harder for the late entrant to offer his solution at lower prices while increasing your own profitability. Just looking at how two different players deal with HTC, it's pretty clear that Microsoft pursues a licensing approach (which enabled HTC to avoid litigation by agreeing to pay) while it's increasingly probable that Apple actually wants to preclude competitors such as HTC from providing certain functionality (such as multitouch) at all. In that case, litigation (which is now ongoing between Apple and HTC) is rarely avoided because the alleged infringer could only avoid it by reducing the functionality of his product.
The only way for a competitor to get away unscathed, neither having to pay royalties nor having to curtail the functionality of any product, is to strike a cross-licensing deal with the aggressor. So how likely is that to be the solution of the current dispute?
While they are fierce competitors, Apple and Microsoft put a cross-licensing deal in place a long time ago, and Microsoft has such a powerful patent portfolio, especially in connection with operating system and graphical user interface functionality, that it's in a position to do such a deal with Apple. That's good for Microsoft and for its licensees.
But how about everyone else? The camp that would most desperately need a cross-licensing deal with Apple is the whole Android camp, meaning Google and its hardware partners (the vendors who build phones based on Android, be it on the basis of a formal agreement with Google or on open-source terms). As the article explains, Google didn't even try to provide multitouch functionality by default and left it to those hardware partners to tread that dangerous path. When I talk to people, including IT-specialized journalists, about the mobile patent war, there's a very common misconception: "Google can do a cross-license with Apple." However, in recent years Google obtained only about 10% the number of patents that Apple received, and given the areas both companis focus on, it's likely that Google not only has fewer but also has, across its smaller portfolio, a lower percentage of patents that could really pose a threat to Apple. Google isn't a patent powerhouse. I only compared Google's patenting activity to that of Apple, and even Apple isn't extremely big (but some of those patents, especially the ones related to multitouch, may be very critical).
Now I understand what you mean in general but I still can't see how one could make this work. There can be great ideas from a perspective of what would be fair and desirable but transforming them into a workable rule that works under the law is not always possible.
Assuming a patent relates to something that's new (which is the way it should be but patent offices often fail to find prior art), then it's logically inevitable that at the beginning (after the grant of the patent) there won't be anyone from whom the patent holder could collect royalties. Then it takes time for a new market entrant (such as RIM in the BlackBerry case) to build a business. You can't expect a patent holder to be aware of every little guy out there potentially infringing on his patent. It won't even be possible for the patent holder to monitor the entire market at all times, but even if the patent holder identifies an infringement, there's no alternative to letting the patent holder decide when the time has come to assert the patent. Given the cost of legal work (even before you go to court, but especially if you do), the patent holder may indeed determine that an identified infringer is (at least for the time being) too small to justify the enormous cost of enforcing the patent.
What would be possible (and has been more or less proposed as part of a patent reform initiative) is to do away with the right of patent holders to obtain injunctive relief. That would amount to what you say about a right to collect royalties.
I believe this would indeed be an improvement, but only if it's also ensured that damages are calculated on a reasonable basis, considering that a complex information technology product (such as a BlackBerry) consists of a very large number of potentially patentable elements.
What the critics of this idea not to allow injunctions say is that in the event of a patent dispute with a very large patent holder and a small one suing each other, the ability to obtain an injunction may be the only major leverage that the little guy can have because it would obviously hurt the big company if it has to stop (or has to fear a potential obligation to stop) selling an important product. I just wanted to mention that argument for the sake of completeness. I still think it would be better to do away with injunctions in the IT sector. In the pharma sector, injunctions are very much required, however, based on what I have read. That's often the problem with patent reform: different industries have different need. In IT, it's about incremental innovation and potentially many patents that are relevant to a single product. In pharma, the number of relevant patents per product is very low.
IBM has never been able to stop anyone from innovating based on patents.
IBM has a long history of using patents anticompetitively. There was a company named PSI against which IBM litigated and ultimately IBM bought that company just to shut out competition, but by asserting patents they were able to force PSI's shareholders to sell out. And a more recent example in that tradition: Have you seen the exchange of letters (two in each direction) between IBM and TurboHercules? They use patents to defend their mainframe monopoly. TurboHercules only inquired about the possibility of letting its customers run z/OS (the proprietary mainframe operating system) on the Hercules open-source emulator. They didn't ask about patents or anything, just about software licensing. IBM then claimed that it's an "infringing platform".
In fact, I believe that since IBM has so many patents, they are free to innovate without the threat of being sued for patent infringement. In your example, the lack of patents allowed a parasite to sue RIM. This does not often happen to IBM.
Sorry to say so, but this is completely off base. Against a non-producing entity, no patent portfolio of any size helps you. If RIM had had the same patent portfolio as IBM, or even one that's ten times bigger, it would not have made a difference because they couldn't have used their patents against that non-producing entity. Your own patents will only serve as a deterrent if the aggressor has products on the market and if you own patents to prevent the further sale of those products. Since a troll such as the entity that sued RIM doesn't have products of its own, there's just no way you can ever use a patent against them for retaliatory purposes.
Sure they are an agressive company, but their patents relate to real products, and cannot be compared to the people who sued RIM.
The question of why someone obtains those patents is now more of an ethical question than the really relevant practical question. For someone who faces a patent infringement allegation, it's even worse (for the reasons I explained in a previous post) to be dealing with a strategic patent holder than with a troll, since the latter will "only" want money but the strategic owner may want to shut out competition. Even apart from that, if you have a product and someone holds a patent against you, does it make the problem smaller that you know it's a sort of more legitimate patent holder than a troll? What matters is the impact it will have on your business.
I don't believe HTC wouldn't have a formal contract in place with Google over the use of Android - they're not only a massive partner with a whole range of Android phones of their own, they even produce Google's physical phone product for them.
I understand your reasoning and you may very well be right, but given that the Android software is available on Free and Open Source Software terms, I wanted to give Google the benefit of the doubt. Letting down a formal licensee would be even worse than letting down independent parties using the software on open-source terms, although (as I said) Google will at some point have to consider whether it can successfully initiate and promote open-source projects if it stays on the sidelines when patent issues come up. By doing so forever (so far, we don't know yet what they'll do), Google would actually give a major strategic advantage to proprietary competitors.
Your right, Apple doesn't have any patents in the pool
That's not known. I just said they need not be a contributor to the pool -- but they might be. Steve Jobs didn't rule out either possibility.
If you think it "Says something" that Steve Jobs talked about the legal viability of a codec then tell us what it says. Being vague and trying to create an evil enemy where none exists is just dishonest and weakens the rest of your comment.
Sorry that I had not been more specific on that one. I meant to say that the fact that Apple is in the know (since not even the developers of Theora had an idea that such a pool was being formed) suggests that Apple is at least in some kind of contact with that pool and the possible assertion of patents by that pool, whether or not Apple is directly involved with it, against Theora and other open-source codecs would quite apparently be conducive to Apple's codec strategy. There's certainly no indication that Apple would dislike legal action against open-source codecs.
So perhaps a stipulation that they cannot force a business to interrupt operations based on a patent that has passed it's 'grace period' for claims?
Sorry but it's not clear to me what you propose. In particular, what do you mean by "a patent that has passed"? Software patents can be vaild for up to 20 years (if periodic renewal fees are paid). For most software patents that's longer than the commercially relevant period anyway, and during those 20 years the patent holder (provided that renewal fees are always paid) can always use them to disrupt a business. There can be some exceptions where a patent holder may lose the entitlement to assert a patent because of tolerating a known infringement for very long, but that's a different thing.
While it's true that settlement is the most common resolution of those disputes, the parties to such a dispute must do everything they can to build a strong position so they can get as much out of the settlement as possible. A settlement is an agreement that allows the parties to withdraw their respective lawsuits and complaints, and that also depends on which procedural avenues are taken (mere complaint vs. traditional lawsuit plus complaint).
Backroyalties (license fees for past infringement) -- or the equivalent in case of a lawsuit, damages for past infringement -- certainly add to the problem, but the biggest leverage a patent troll can have is the ability to force an "infringer" to discontinue shipping a key product (or several key products at the same time). That's when a company's ability to stay in business becomes seriously endangered and that's the perfect basis for a hold-up.
Because their obligation to their shareholders is to maximize profit, not to line the pockets of lawyers.
Contrary to what you suggest, that is the very reason for which HTC would, if it believed in its case, use all of the legal means at its disposal to win. The lawsuit would cost a few million dollars, which is neither a large amount compared to the market we're talking about nor compared to what's at stake in the patent war with Apple, which could force HTC out of the Android-based phone business entirely.
I don't mean to downplay the problem that patent trolls / non-producing entites represent, but they're a feature not a bug of the patent system, as Carlo Piana, a European lawyer specialized on Free and Open Source Software matters, recently said on Twitter. The proponents of this kind of patent system simply want trolls to exist, even though they will from time to time have problems with them themselves.
But a troll just wants to make the money. It's a hold-up situation if you face a troll, but if you cough up the money, he'll leave you alone and focus on the next victim. Even though $600 million is a huge amount, RIM (the BlackBerry maker) not only survived but actually generated huge levels of profits ever since.
By contrast, if Apple decides that no one else should use certain multitouch and other functionality, then only those with a really massive patent arsenal ("mutually assured destruction"), which is what Nokia may indeed have, will be able to solve the problem through cross-licensing. But it's economically practically impossible to solve the problem by offering Apple a check because the strategic value of maintaining a certain competitive advantage is so valuable to the market leader that smaller players can't solve the problem by paying. So if Apple insists on its rights, it can tell vendors such as HTC to stop providing certain functionality, period. Unconditionally. No negotiation. Cease and desist. The only chance then may be that if you can prove a dominant position, antitrust law could be used to achieve compulsory licensing. In Apple's case, that would be very difficult to say the least...
Again, I don't mean to downplay the problem with patent trolls, but in order to ensure that incremental innovation can take place for the benefit of consumers, it's key to watch what the large patent holders are doing, starting with the biggest patent bully on the block, IBM, but also looking at everything else that's going on.
I for my part didn't mean to say that Nokia is being unreasonably by asking Apple to either share its patents or otherwise asserting them against them. However, I did stress that this shows how limited the value of patents can be in an area of incremental innovation: Apple undoubtedly did some very innovative things in recent years and one would hope that the patent system serves to help such innovators. But since Apple's innovations can only be put to use on top of existing technologies (incremental innovation), they may at the end of the dispute with Nokia indeed having to cede all of their patents to earlier market entrants, in which case the patent system fails to protect the more recent innovator.
Ciaran, we fought together against the proposed EU software patent law years ago and I agree that most if not all of the problems you mention would go away if legislators abolish software patents entirely (I said "most if not all" because a very small part of those mobile patents may be hardware, not software, patents).
No doubt about the fundamental problem that trolls represent but there's a key difference between them and the big patent holders: a troll will at the end of the day just want to make money. It's a hold-up but if you cough up the money, the troll moves on to the next victim. By contrast, if a major patent holder such as Apple determines that no one else (except those who have key patents Apple absolutely needs) should be able to offer certain functionality, such as some multitouch features, then you can't buy out the market leader: the potential licensees will never have an economic basis on which they could offer enough that Apple would decide to give up some key competitive advantage.
Therefore, it's important to keep a close eye on what the major patent holders are doing, on how they are using their patents. IBM has the biggest patent portfolio of all and unfortunately bullies other companies with it. Apple may not be a contributor to the pool it says will go after Theora and other open-source codecs, but the fact that Steve Jobs knows about such plans and writes about them already says something. Then there are Microsoft's patents, such as the FAT patents. There's no litigation going on regarding those but HTC did agree to pay Microsoft patent royalties. All of those developments are important to watch, and it's key to make distinctions between different ways in which companies can use a patent. For an example, a license agreement (even though it's regrettable if unintentional infringers have to pay for something just because someone else previously took out a patent) is always a better outcome than a patent holder's refusal to negotiate at all.
Concerning abolition, I wish you best of luck with your effort but as long as only the Free and Open Source Software community is seriously committed to the cause while small and especially medium-sized businesses aren't (if they really wanted to get rid of software patents, they'd donate serious money to the FFII or to your campaign), I can't see how it's going to happen anytime soon. Therefore, I'm now increasingly focused on the way those patents get used, not because I like but because I have to recognize the fact that they exist now and will exist for much longer, unfortunately.
The Wired article and most of the media reports and the comments here are focused on patent disputes between the hardware companies involved. But according to a recent announcement, Android is now a high-volume mobile phone operating system and everyone knows that it's a Google project.
Those vendors who, like HTC, decided to build smartphones running on Android had access to the program code on open-source terms. They may not have a formal contract in place with Google at all, or if there is one, it will be more focused on trademark rights because the software itself is under a free license. Still they probably all took a great deal of confidence from Google's backing of Android.
I don't mean to criticize Google for what it has (not) done yet: to step into the ring and bail out companies who took major business decisions based on their reliance upon a Google open-source project. But at some point in time, of which one can certainly argue that it hasn't come yet, there will be industry concern and also concern in the wider Free and Open Source Software community over the extent to which Google stands behind the open-source software it puts out. Google has a significant patent portfolio (small compared to the portfolios of IBM, Microsoft and even Apple, but still much bigger than that of HTC). Google could also pay royalties to patent holders given the important role that Android plays in its overall corporate strategy (Google could become a master licensee of the required patents and then grant sublicenses to vendors selling Android-based phones).
There are rumors that Google plans to open-source the VP8 video codec and it might happen very soon. Multimedia codecs are also a terrible patent minefield. Similarly as mobile phone operating software, they are an OEM component, meaning others incorporate them into their commercial products. Again, it's too early to blame Google for anything here, but the fact that Google doesn't try to bail out the vendors that propagate its Android software raises questions and if Google indeed does open-source VP8, industry will probably want to know about the patent situation. I believe that Google should then at the very least publish an analysis of the patent situation surrounding VP8, including the reasons why Google believes it doesn't infringe on any of the patents held by the MPEG LA pool. That's just one way to look at it. Commercial vendors may, based on the Android experience, actually ask Google for the possibility of an agreement under which Google would hold them harmless of patent infringement suits.
Again, the jury is still out on Google and patent problems with its open-source software, but I believe it's in Google's own best interest to counter an impression that Google puts out open-source projects it effectively controls and lets others take not only the risk that is connected with hardware manufacturing but also, even worse in my view, the risk related to possible patent infringement. It would come down to a game of "if Google wins, it wins; if Google loses (due to patents), its hardware partners lose."
I will be following those future developments closely on my FOSS Patents blog covering open-source patent issues. Now it's still too early to claim Google isn't committed to protecting its open-source initiatives.
I'm not underestimating the theoretical authority of the ITC at all. Of course they could, if they decided to take action and if there were sufficient legal grounds, have a (theoretically) devastating effect on Apple.
But if HTC believes its patents are so powerful, why would HTC only lodge a complaint with the ITC, which is very cheap, while clearly shying away from filing a lawsuit? Apple sued in a court plus complained with the ITC; now HTC only responds to the cheaper and probably also slower one of the two alternatives. If they believed in the strength of their case, they would want to be in maximum control of their destiny and spend the several million dollars that a lawsuit in a regular court takes (in addition to the compaint).
Slashdot Mirror
So that means if I sell software, without any hardware with it, then I'm not infringing on _any_ software patents, right?
The users might be, if they run said software on "a hardware appliance, comprising of a CPU, blahblah", but not the developer.
But then, why do pure software developers get sued, huh?
They can serve you an injunction for contributory (indirect) infringement and claim damages. Doesn't make much of a practical difference.
Look at this comment slightly further above, "The idea of Google countersuing isn't realistic."
Google still has a load of patents with which it can countersue any third party that isn't a pure-play non-practicing entity.
No, Google isn't a patent powerhouse. Its patent portfolio is only a fraction of the size of Apple, for an example, and even Apple isn't extremely big compared to some others. Look at this analysis, for an example:
In a recent investor note from Deutsche Bank, analyst Chris Whitmore compares the patent libraries of Apple, Google, and HTC. What he found was that in the past few years, Apple has been issued 3,000 patents, Google has been issued 316 patents, and HTC has been issued a measly 58 patents.
Also, if Google had the ability to do this, why would they stand on the sidelines when Android adopters such as HTC are being sued or when royalties are collected from them?
Some journalists, bloggers and Twitter users appear to have misconceptions regarding the way Microsoft Internet Explorer will support WebM.
It's certainly very positive for Internet Explorer users that they can play WebM video/audio provided that they have a codec (meaning, a plug-in) installed. That's what the Windows Team blog states as a technical requirement.
However, that just means flexibility for MSIE users and isn't a major breakthrough for WebM/VP8. Internet Explorer has always allowed plug-ins and I don't even know if it's ever tried to block one. So this isn't the same kind of endorsement of WebM/VP8 as if Internet Explorer came with WebM support on board. If that happened, it would also mean that there aren't any remaining concerns over patent issues. But that's not what has happened.
Keep in mind that you can also view H.264 with Firefox if you have a plug-in. The net effect of the whole HTML 5 video situation is that plug-ins will continue to play a role.
WebM is available under a new license. So far haven't been able to find out whether Google will try to get this license OSI-approved.
Google says it holds certain patents on the VP8 video codec that is part of WebM but there's no assurance that Google's patents are the only patents required. What about patents that third parties could assert? While it appears to be a nice gesture if a major player releases software on open source terms, it's imperative to perform a well-documented patent clearance.
Developers should be provided with detailed explanations why Google believes that no one adopting WebM will have to fear allegations of patent infringement. Otherwise those developers might be exposed to considerable risk. It wouldn't be possible to check on millions of different patents but at the very least I think Google should look at the patents held by the MPEG LA pool as well as patents held by some well-known 'trolls' and explain why those aren't infringed. Programmers have a right to get that information so they can make an informed decision for themselves whether to take that risk or not.
It's not unreasonable to ask Google to perform a well-documented patent clearance because they certainly have the resources in place while most open source developers don't.
The situation surrounding Android shows that Google might opt to stand on the sidelines if those adopting its open source technologies -- such as HTC -- are sued by patent holders. I can't find any promise on the WebM website that Google would come to the aid of third parties adopting the technology, so Google should at least help everyone to assess the risk.
We all know Steve Jobs' recent email in which he said a patent pool was being assembled to go after open source codecs. So the patent question is really a critical one. Also, this in-depth analysis by an X.264 developer shows that VP8 and H.264 are so similar that the risk of patent infringement could be substantial.
I have previously called for this kind of patent clearance, in connection with the open source Theora codec as well as with VP8, here on slashdot as well as on my blog, such as in this post.
While the DPL is still work-in-progress, I've posted this preliminary analysis of its possibilities and limitations. It remains to be seen if it offers a compelling reason for anyone to join.
As much as I regret to say it (btw, I founded the European NoSoftwarePatents campaign in 2004), I don't think this kind of resistance to H.264 is going to lead to a solution in the event some of the patents in the MPEG LA pool (just the H.264 pool contains 1,135 patents, and they have more pools under management there) get infringed by an alternative format that everyone would advocate, be it Theora or VP8. In that case, "the lawyers" would come out anyway to collect royalties and impose other terms and conditions.
As a result, whatever alternative that infringes on those patents would end up being unfree (neither free beer nor free speech) anyway.
The call for resistance to H.264 will make a great deal of sense if and when there is a reasonably reliable basis on which it can be assumed that a format such as Theora and/or VP8 doesn't infringe patents. While it's impossible to check on every one of the millions of software patents that exist around the globe, at the very least the proponents of Theora or VP8 (which Google might opensource very soon) should make a well-documented patent clearance effort with respect to the patents held by the MPEG LA consortium and explain why they their preferred codec doesn't infringe on those. Companies like Google or a deep-pocket non-profit such as the Mozilla Foundation could certainly do so if they wanted. I explained this thinking in a recent blog post.
Despite the typo with the excessive "i", the post was right on: those patents exist all over the world. It's not just that they exist, they also get enforced. Even in Germany, despite the fact that we (I founded the NoSoftwarePatents campaign in 2004) defeated a proposal for an EU software patent law, those kinds of patents get enforced quite aggressively. Every year at CeBIT, there are dozens of search warrants and confiscations, most of them related to MP3 and presumably an increasing number related to MPEG video codecs.
In recognition of the unfortunate realities that those patents exist and get enforced, I believe the proponents of other formats than H.264 -- be it Theora or be it VP8, in case Google opensources it -- would have to make some well-documented patent clearance effort and explain -- at least with respect to the patents held by the MPEG LA pool -- why their proposed codec doesn't infringe. I proposed so in a recent blog post, "Video codecs: Food for thought".
It may appear unfair and yes, it's harder to prove that there's no infringement than to prove that there is one, but I believe those propagating certain formats should accept responsibility for all third-party developers who might use their code and incorporate it, on open-source terms, into their projects and then run into serious legal problems. I wouldn't expect this kind of effort from a small open-source project but if there are large companies involved, or a deep-pocket non-profit such as the Mozilla Foundation, then I believe it's not unreasonable to ask them to do so instead of putting people at risk who would be unable to perform that kind of analysis.
It's true that the new <video> tag in HTML 5 would suggest that a standardized codec be used by all browsers claiming to be fully HTML 5 compatible.
However, the new tag could also be used (even though in a less useful way than otherwise) if there is, which is unfortunately the most likely scenario, no industry consensus on a single codec. Assuming that there are two camps (H.264 and Theora; or maybe three if Google pushes for VP8), web servers could then provide different Uniform Resource Identifiers for the files, based on the browser that makes the web page request; or the file names (thus the URIs) could be identical but dependent on which browser is in use, a different file could be provided.
I have discussed the HTML 5 aspects of this in a recent blog post, "Video codecs: The HTML 5 dimension". While I am against software patents (I founded the European NoSoftwarePatents campaign in 2004, I just try to take a realistic perspective on the fact that software patents exist and get enforced all around the globe (as far as codecs go, there's aggressiv enforcement even in Europe, such as dozens of search warrants and confiscations every year at the CeBIT trade show.
Idea should actually have to be novel and non-obvious.
Yes, that's the idea and that's what the law says, but every word gets a different meaning under patent law than it has from a common-sense perspective.
Large parts of what the average person would consider "obvious" is considered "inventive" under patent law. That's why different attempts on both sides of the Atlantic have failed to get those FAT patents revoked. People thought that maybe the courts would be more demanding in terms of the inventive step involved than the examiners at the patent offices, but the judges upheld the original decisions to grant.
The Infoworld article makes some good points but the issue is too big to claim that those two pages say all this fight is about.
The emphasis on multitouch (which doesn't rule out that other key patents are held by Apple as well) would be plausible. It's extremely difficult and rare for a patent holder to aim for total annihilation of a competitor. Patents are much more likely to be used against a competitor (i) to maintain a certain premium functionality (ii) or to impose license fees that make it harder for the late entrant to offer his solution at lower prices while increasing your own profitability. Just looking at how two different players deal with HTC, it's pretty clear that Microsoft pursues a licensing approach (which enabled HTC to avoid litigation by agreeing to pay) while it's increasingly probable that Apple actually wants to preclude competitors such as HTC from providing certain functionality (such as multitouch) at all. In that case, litigation (which is now ongoing between Apple and HTC) is rarely avoided because the alleged infringer could only avoid it by reducing the functionality of his product.
The only way for a competitor to get away unscathed, neither having to pay royalties nor having to curtail the functionality of any product, is to strike a cross-licensing deal with the aggressor. So how likely is that to be the solution of the current dispute?
While they are fierce competitors, Apple and Microsoft put a cross-licensing deal in place a long time ago, and Microsoft has such a powerful patent portfolio, especially in connection with operating system and graphical user interface functionality, that it's in a position to do such a deal with Apple. That's good for Microsoft and for its licensees.
But how about everyone else? The camp that would most desperately need a cross-licensing deal with Apple is the whole Android camp, meaning Google and its hardware partners (the vendors who build phones based on Android, be it on the basis of a formal agreement with Google or on open-source terms). As the article explains, Google didn't even try to provide multitouch functionality by default and left it to those hardware partners to tread that dangerous path. When I talk to people, including IT-specialized journalists, about the mobile patent war, there's a very common misconception: "Google can do a cross-license with Apple." However, in recent years Google obtained only about 10% the number of patents that Apple received, and given the areas both companis focus on, it's likely that Google not only has fewer but also has, across its smaller portfolio, a lower percentage of patents that could really pose a threat to Apple. Google isn't a patent powerhouse. I only compared Google's patenting activity to that of Apple, and even Apple isn't extremely big (but some of those patents, especially the ones related to multitouch, may be very critical).
You wanna see a massive patent powerhouse (which however almost certainly won't come to the rescue of Android)? IBM pointed out at a press conference last year that at least at the time it had (and might still have) more patents than Microsoft, HP, Oracle, Apple, EMC, Accenture and Google combined...
Now I understand what you mean in general but I still can't see how one could make this work. There can be great ideas from a perspective of what would be fair and desirable but transforming them into a workable rule that works under the law is not always possible.
Assuming a patent relates to something that's new (which is the way it should be but patent offices often fail to find prior art), then it's logically inevitable that at the beginning (after the grant of the patent) there won't be anyone from whom the patent holder could collect royalties. Then it takes time for a new market entrant (such as RIM in the BlackBerry case) to build a business. You can't expect a patent holder to be aware of every little guy out there potentially infringing on his patent. It won't even be possible for the patent holder to monitor the entire market at all times, but even if the patent holder identifies an infringement, there's no alternative to letting the patent holder decide when the time has come to assert the patent. Given the cost of legal work (even before you go to court, but especially if you do), the patent holder may indeed determine that an identified infringer is (at least for the time being) too small to justify the enormous cost of enforcing the patent.
What would be possible (and has been more or less proposed as part of a patent reform initiative) is to do away with the right of patent holders to obtain injunctive relief. That would amount to what you say about a right to collect royalties.
I believe this would indeed be an improvement, but only if it's also ensured that damages are calculated on a reasonable basis, considering that a complex information technology product (such as a BlackBerry) consists of a very large number of potentially patentable elements.
What the critics of this idea not to allow injunctions say is that in the event of a patent dispute with a very large patent holder and a small one suing each other, the ability to obtain an injunction may be the only major leverage that the little guy can have because it would obviously hurt the big company if it has to stop (or has to fear a potential obligation to stop) selling an important product. I just wanted to mention that argument for the sake of completeness. I still think it would be better to do away with injunctions in the IT sector. In the pharma sector, injunctions are very much required, however, based on what I have read. That's often the problem with patent reform: different industries have different need. In IT, it's about incremental innovation and potentially many patents that are relevant to a single product. In pharma, the number of relevant patents per product is very low.
IBM has never been able to stop anyone from innovating based on patents.
IBM has a long history of using patents anticompetitively. There was a company named PSI against which IBM litigated and ultimately IBM bought that company just to shut out competition, but by asserting patents they were able to force PSI's shareholders to sell out. And a more recent example in that tradition: Have you seen the exchange of letters (two in each direction) between IBM and TurboHercules? They use patents to defend their mainframe monopoly. TurboHercules only inquired about the possibility of letting its customers run z/OS (the proprietary mainframe operating system) on the Hercules open-source emulator. They didn't ask about patents or anything, just about software licensing. IBM then claimed that it's an "infringing platform".
In fact, I believe that since IBM has so many patents, they are free to innovate without the threat of being sued for patent infringement. In your example, the lack of patents allowed a parasite to sue RIM. This does not often happen to IBM.
Sorry to say so, but this is completely off base. Against a non-producing entity, no patent portfolio of any size helps you. If RIM had had the same patent portfolio as IBM, or even one that's ten times bigger, it would not have made a difference because they couldn't have used their patents against that non-producing entity. Your own patents will only serve as a deterrent if the aggressor has products on the market and if you own patents to prevent the further sale of those products. Since a troll such as the entity that sued RIM doesn't have products of its own, there's just no way you can ever use a patent against them for retaliatory purposes.
Sure they are an agressive company, but their patents relate to real products, and cannot be compared to the people who sued RIM.
The question of why someone obtains those patents is now more of an ethical question than the really relevant practical question. For someone who faces a patent infringement allegation, it's even worse (for the reasons I explained in a previous post) to be dealing with a strategic patent holder than with a troll, since the latter will "only" want money but the strategic owner may want to shut out competition. Even apart from that, if you have a product and someone holds a patent against you, does it make the problem smaller that you know it's a sort of more legitimate patent holder than a troll? What matters is the impact it will have on your business.
I don't believe HTC wouldn't have a formal contract in place with Google over the use of Android - they're not only a massive partner with a whole range of Android phones of their own, they even produce Google's physical phone product for them.
I understand your reasoning and you may very well be right, but given that the Android software is available on Free and Open Source Software terms, I wanted to give Google the benefit of the doubt. Letting down a formal licensee would be even worse than letting down independent parties using the software on open-source terms, although (as I said) Google will at some point have to consider whether it can successfully initiate and promote open-source projects if it stays on the sidelines when patent issues come up. By doing so forever (so far, we don't know yet what they'll do), Google would actually give a major strategic advantage to proprietary competitors.
Your right, Apple doesn't have any patents in the pool
That's not known. I just said they need not be a contributor to the pool -- but they might be. Steve Jobs didn't rule out either possibility.
If you think it "Says something" that Steve Jobs talked about the legal viability of a codec then tell us what it says. Being vague and trying to create an evil enemy where none exists is just dishonest and weakens the rest of your comment.
Sorry that I had not been more specific on that one. I meant to say that the fact that Apple is in the know (since not even the developers of Theora had an idea that such a pool was being formed) suggests that Apple is at least in some kind of contact with that pool and the possible assertion of patents by that pool, whether or not Apple is directly involved with it, against Theora and other open-source codecs would quite apparently be conducive to Apple's codec strategy. There's certainly no indication that Apple would dislike legal action against open-source codecs.
So perhaps a stipulation that they cannot force a business to interrupt operations based on a patent that has passed it's 'grace period' for claims?
Sorry but it's not clear to me what you propose. In particular, what do you mean by "a patent that has passed"? Software patents can be vaild for up to 20 years (if periodic renewal fees are paid). For most software patents that's longer than the commercially relevant period anyway, and during those 20 years the patent holder (provided that renewal fees are always paid) can always use them to disrupt a business. There can be some exceptions where a patent holder may lose the entitlement to assert a patent because of tolerating a known infringement for very long, but that's a different thing.
While it's true that settlement is the most common resolution of those disputes, the parties to such a dispute must do everything they can to build a strong position so they can get as much out of the settlement as possible. A settlement is an agreement that allows the parties to withdraw their respective lawsuits and complaints, and that also depends on which procedural avenues are taken (mere complaint vs. traditional lawsuit plus complaint).
Backroyalties (license fees for past infringement) -- or the equivalent in case of a lawsuit, damages for past infringement -- certainly add to the problem, but the biggest leverage a patent troll can have is the ability to force an "infringer" to discontinue shipping a key product (or several key products at the same time). That's when a company's ability to stay in business becomes seriously endangered and that's the perfect basis for a hold-up.
jrumney wrote:
Contrary to what you suggest, that is the very reason for which HTC would, if it believed in its case, use all of the legal means at its disposal to win. The lawsuit would cost a few million dollars, which is neither a large amount compared to the market we're talking about nor compared to what's at stake in the patent war with Apple, which could force HTC out of the Android-based phone business entirely.
I don't mean to downplay the problem that patent trolls / non-producing entites represent, but they're a feature not a bug of the patent system, as Carlo Piana, a European lawyer specialized on Free and Open Source Software matters, recently said on Twitter. The proponents of this kind of patent system simply want trolls to exist, even though they will from time to time have problems with them themselves.
But a troll just wants to make the money. It's a hold-up situation if you face a troll, but if you cough up the money, he'll leave you alone and focus on the next victim. Even though $600 million is a huge amount, RIM (the BlackBerry maker) not only survived but actually generated huge levels of profits ever since.
By contrast, if Apple decides that no one else should use certain multitouch and other functionality, then only those with a really massive patent arsenal ("mutually assured destruction"), which is what Nokia may indeed have, will be able to solve the problem through cross-licensing. But it's economically practically impossible to solve the problem by offering Apple a check because the strategic value of maintaining a certain competitive advantage is so valuable to the market leader that smaller players can't solve the problem by paying. So if Apple insists on its rights, it can tell vendors such as HTC to stop providing certain functionality, period. Unconditionally. No negotiation. Cease and desist. The only chance then may be that if you can prove a dominant position, antitrust law could be used to achieve compulsory licensing. In Apple's case, that would be very difficult to say the least...
Again, I don't mean to downplay the problem with patent trolls, but in order to ensure that incremental innovation can take place for the benefit of consumers, it's key to watch what the large patent holders are doing, starting with the biggest patent bully on the block, IBM, but also looking at everything else that's going on.
I for my part didn't mean to say that Nokia is being unreasonably by asking Apple to either share its patents or otherwise asserting them against them. However, I did stress that this shows how limited the value of patents can be in an area of incremental innovation: Apple undoubtedly did some very innovative things in recent years and one would hope that the patent system serves to help such innovators. But since Apple's innovations can only be put to use on top of existing technologies (incremental innovation), they may at the end of the dispute with Nokia indeed having to cede all of their patents to earlier market entrants, in which case the patent system fails to protect the more recent innovator.
Ciaran, we fought together against the proposed EU software patent law years ago and I agree that most if not all of the problems you mention would go away if legislators abolish software patents entirely (I said "most if not all" because a very small part of those mobile patents may be hardware, not software, patents).
No doubt about the fundamental problem that trolls represent but there's a key difference between them and the big patent holders: a troll will at the end of the day just want to make money. It's a hold-up but if you cough up the money, the troll moves on to the next victim. By contrast, if a major patent holder such as Apple determines that no one else (except those who have key patents Apple absolutely needs) should be able to offer certain functionality, such as some multitouch features, then you can't buy out the market leader: the potential licensees will never have an economic basis on which they could offer enough that Apple would decide to give up some key competitive advantage.
Therefore, it's important to keep a close eye on what the major patent holders are doing, on how they are using their patents. IBM has the biggest patent portfolio of all and unfortunately bullies other companies with it. Apple may not be a contributor to the pool it says will go after Theora and other open-source codecs, but the fact that Steve Jobs knows about such plans and writes about them already says something. Then there are Microsoft's patents, such as the FAT patents. There's no litigation going on regarding those but HTC did agree to pay Microsoft patent royalties. All of those developments are important to watch, and it's key to make distinctions between different ways in which companies can use a patent. For an example, a license agreement (even though it's regrettable if unintentional infringers have to pay for something just because someone else previously took out a patent) is always a better outcome than a patent holder's refusal to negotiate at all.
Concerning abolition, I wish you best of luck with your effort but as long as only the Free and Open Source Software community is seriously committed to the cause while small and especially medium-sized businesses aren't (if they really wanted to get rid of software patents, they'd donate serious money to the FFII or to your campaign), I can't see how it's going to happen anytime soon. Therefore, I'm now increasingly focused on the way those patents get used, not because I like but because I have to recognize the fact that they exist now and will exist for much longer, unfortunately.
The Wired article and most of the media reports and the comments here are focused on patent disputes between the hardware companies involved. But according to a recent announcement, Android is now a high-volume mobile phone operating system and everyone knows that it's a Google project.
Those vendors who, like HTC, decided to build smartphones running on Android had access to the program code on open-source terms. They may not have a formal contract in place with Google at all, or if there is one, it will be more focused on trademark rights because the software itself is under a free license. Still they probably all took a great deal of confidence from Google's backing of Android.
I don't mean to criticize Google for what it has (not) done yet: to step into the ring and bail out companies who took major business decisions based on their reliance upon a Google open-source project. But at some point in time, of which one can certainly argue that it hasn't come yet, there will be industry concern and also concern in the wider Free and Open Source Software community over the extent to which Google stands behind the open-source software it puts out. Google has a significant patent portfolio (small compared to the portfolios of IBM, Microsoft and even Apple, but still much bigger than that of HTC). Google could also pay royalties to patent holders given the important role that Android plays in its overall corporate strategy (Google could become a master licensee of the required patents and then grant sublicenses to vendors selling Android-based phones).
There are rumors that Google plans to open-source the VP8 video codec and it might happen very soon. Multimedia codecs are also a terrible patent minefield. Similarly as mobile phone operating software, they are an OEM component, meaning others incorporate them into their commercial products. Again, it's too early to blame Google for anything here, but the fact that Google doesn't try to bail out the vendors that propagate its Android software raises questions and if Google indeed does open-source VP8, industry will probably want to know about the patent situation. I believe that Google should then at the very least publish an analysis of the patent situation surrounding VP8, including the reasons why Google believes it doesn't infringe on any of the patents held by the MPEG LA pool. That's just one way to look at it. Commercial vendors may, based on the Android experience, actually ask Google for the possibility of an agreement under which Google would hold them harmless of patent infringement suits.
Again, the jury is still out on Google and patent problems with its open-source software, but I believe it's in Google's own best interest to counter an impression that Google puts out open-source projects it effectively controls and lets others take not only the risk that is connected with hardware manufacturing but also, even worse in my view, the risk related to possible patent infringement. It would come down to a game of "if Google wins, it wins; if Google loses (due to patents), its hardware partners lose."
I will be following those future developments closely on my FOSS Patents blog covering open-source patent issues. Now it's still too early to claim Google isn't committed to protecting its open-source initiatives.
I'm not underestimating the theoretical authority of the ITC at all. Of course they could, if they decided to take action and if there were sufficient legal grounds, have a (theoretically) devastating effect on Apple.
But if HTC believes its patents are so powerful, why would HTC only lodge a complaint with the ITC, which is very cheap, while clearly shying away from filing a lawsuit? Apple sued in a court plus complained with the ITC; now HTC only responds to the cheaper and probably also slower one of the two alternatives. If they believed in the strength of their case, they would want to be in maximum control of their destiny and spend the several million dollars that a lawsuit in a regular court takes (in addition to the compaint).