Maël Brunet: Hello Andrew. Can you start by presenting yourself and the work that you are involved in for readers who don’t know who you are?
Andrew Updegrove: Sure. I am an attorney in Boston, Massachusetts and I have been active in the standards area since around 1987. Tthat experience working with setting up standards organisations took me into the world of “Openness”, and over time most of my work has transferred to that area. So now I have not only helped set up over a hundred standards organisations but some dozens of Open Source foundations, as well as gotten involved representing and sometimes being on the board of advisors of a variety of openness-related initiatives, such as Open Source for America, a US public advocacy group for Open Software, of course OpenForum Academy, and an organisation in the US called the Center for Open Science which creates an Open Source platform for any sort of Open Research, and so on. I’ve also served on the Boards of Directors of a number of organizations, including the Free Standards Group and the Linux Foundation.
Most of my writing has been more explanatory than research related, but I have written prodigiously in that way. I have written probably somewhere between five hundred and a thousand lengthy blog posts – anywhere from two thousand to eight thousand words on Openness-related issues. I put out a journal called “Standards Today” that has, I think, about sixty-seven issues. Those run in the realm of twenty to thirty thousand words, all of which is intended to explain to a broad audience of government, academic, industry and community about issues related to “Openness” and Open collaboration. I have done academic work as well: I was part of anAmerican Academy of Sciences Committee commissioned by the Patent and Trademark Office to do a report on impediments to the creation of Open Standards. That was, I believe, a first of its kind survey of Open Standards policies around the world. I’m currently doing another work for a journal with a professor in the US, so I do conduct research, but predominantly more open explanation rather than heavily researched type of work.
MB: I would like to talk about patent reform. I know you have done quite a lot of work on this and so I was wondering if you could give our readers – particularly those in the EU who might not have been following the debates so closely – a top-level view of the current state of patent regulation in the US.
AU: Patent reform suffers from several challenges. One of which is the concept of the patent as a one size fits all, legally speaking. In software there is little doubt that the engineer would create an invention with or without patents and indeed in the US until the late 1990s, software was not even recognised as being patentable. And yet there was an enormous amount of software written in the golden age of software. You could even say that the first golden age of Operating System development occurred when patents were not available for them at all. And indeed in Europe the ability to patent software is very limited and yet innovation continues. So my personal belief is that there would be just as much innovation in software if patents were to become unavailable today. In fact the ability to patent software has waxed and waned in the US during the period during which patents have been available. So many people, myself included, believe that the application of patents to technology such as software do more harm than good. Innovation would exist in equal measure without them and yet innovation is frequently stifled because of them. This has been recognised by the Obama Administration, which has tried to limit the usability of patent law by what is commonly referred to as “trolls,” or more politely as “non-practicing entities”, meaning entities that either create technology or often only buy it solely to reap royalties from those companies that do create products that practice those inventions. So there is great frustration when patents are abused.
“My personal belief is that there would be just as much innovation in software if patents were to become unavailable today”
For example one of the things that gave rise to the Obama Administration putting a shoulder behind patent reform was when someone sent demand letters for royalties to thousands of small businesses that were simply using Wi-Fi routers, claiming that each of those small business would have to send royalty checks in or they would be sued. Which I think pretty well everyone agrees is an unwarranted and unhealthy exercise of patent rights. At the same time in the US, there is wide recognition that software patents have been too readily granted where either the invention was not “novel,” meaning that it had already been invented elsewhere or that the elements of the invention had already been published elsewhere and anyone could make the leap of combining those two disclosures to create the same thing. In other words, that the invention was obvious.
One of the reasons that this is more prevalent in software is because it is harder to research “prior art” or prior disclosures and interventions, and also patent offices have struggled with getting examiners who were sufficiently skilled to be able to do it. So there is wide recognition even in the Patent and Trademark Office that many bad patents have been issued. This is particularly bad because litigating patents is hugely expensive – commonly a couple of million dollars for a patent suit. It involves very arcane arguing over complex concepts such as “claim construction.” in order to determine whether in fact infringement actually occurred in any given case, and whether in fact the patent should have issued in the beginning.
“There is wide recognition even in the Patent and Trademark Office that many bad patents have been issued”
So where a company or a patent owner that has lots of money wants to threaten suit it is easy to assert bad patents against small vendors and operators because it costs too much for them to defend themselves. So for all these reasons there is a wide feeling particularly in the high-tech industry and particularly in the software industry that software patents are a bad thing and particularly in the Open Source Community. I did a blog entry just last night where the US Supreme Court ruled that a good faith belief that a patent was invalid should be no defense against infringement. So if an engineer believes that a patent should never have issued, they can not only be sued for infringing that patent, but for inducing others to infringe as well. For example an Open Source developer might now not only be liable for anyone that use the software they created, but as well for downstream entities that might incorporate that software into their own releases. So it is arcane, it is difficult, it is unpredictable what Congress will do, and it is very expensive to defend yourself if you find yourself on the wrong side of the suit.
MB: And what has the US Government and US Congress done to address this? Can you talk a little bit about the policy and legal rather initiatives that have been put forward to address concerns around “patent trolls”.
AU: There is a lot of lobbying in the US on this, especially from large patent holders. But you have to understand that these companies are both patent owners and patent consumers. So they have a very schizophrenic relationship as well. In fact, many of the companies with the most patents comparatively rarely actually sue anyone for infringement. They worry as much about being sued by other owners of patents, so at the same time as they invest enormous amounts of money in patents they also want to have a patent system where they can defend themselves successfully when they think that they are being sued unfairly. So there is something of a check and balance and it would be wrong to assume that most high-tech companies necessarily campaign against reform. They in fact are in favour of legislation that would curtail trolls.
“It would be wrong to assume that most high-tech companies necessarily campaign against reform. They in fact are in favour of legislation that would curtail trolls.”
Another thing to absorb about patents is that large companies are engaged in something of an arms race with patents that is not too dissimilar from what the East and the West were locked in decades ago and thankfully have mostly emerged from. Take Microsoft as an example: until the late 90s, it had very few patents at all (remember, software was not yet patentable). It had thousands of trademarks but very few patents at all and at some point they made this strategic decision that they should start investing heavily in gaining patents. They now get as many patents as the top two or three companies in the world. So partially the reason that these companies do this is that all of the big players have cross licenses between each other and basically what they are trying to do is to make sure that they can do whatever they want, wherever they want without being blocked by other companies. Its almost a through the looking-glass situation where they have patents not to prevent other companies from stepping on their products, but to make sure that no one can do that to them. It’s almost silly, because all of these patents are being acquired in some cases to cancel each other out – rather ludicrous in some ways. However, what it can do is it can restrict competition because these large companies that have these cross licenses with each other end up in sort of a zero sum situation where it may be that comparatively little money is going back and forth, but they all have access to lots of each others’ technology.
MB: … as long as you are a big fish.
AU: Right. But the small companies of course do not have any patents to trade, or fewer patents to trade and that can put them into a disadvantage in trying to enter into a new area of business, and can also lead to more consolidation in industry. You will see that there will be some very large acquisitions in the semi-conductor area right now and in the past there have been very large acquisitions and patent portfolio purchases from companies like Nortel and Novel and again, what this has done, is to bulk up the patent portfolios of companies such as Google entering new spaces where they need to have these patents in order to be able to barter for rights with other major companies. You might think of it a little bit like the dinosaurs that became bigger and bigger and bigger, not because it was an advantage to be big, but only because it was an advantage to be big relative to other dinosaurs.
MB: So how do you deal with this? If you are an SME today, generally speaking what do you think is the best strategy to innovate? Should you care about this at all or is it not worth the time and effort?
“In Open Source, there has been sort of a safe zone that has been largely erected around major open source distributions.”
AU: Again, I would use an evolutionary model: where there is a niche life will evolve to fill it and take advantage of it. Open Standards are one way that SMEs benefit, because when they implement standards they are covered by patent licensing obligations so that an SME can implement the standards either for free or with a reasonable royalty which is no higher than what their competitors are paying — that is one example. In Open Source, there has been sort of a safe zone that has been largely erected around major open source distributions. Partially because the big companies are so heavily invested in Open Source themselves, they do not see any self-interest in disturbing their patents. That’s partly because there would be such a substantial immune reaction against anyone that violated the commons, partially because there has been some creative work such as the Open Invention Network (OIN) which has pooled patent rights and obligations in defensive implementations of Open Source, partially through the coordination of the Linux Foundation, as well as some grassroots efforts, such as Linux Defenders and volunteer organisations. So even though these patents are out there, many small companies successfully either benefit from these initiatives or just fly under the radar of patent owners. Because assertion of patents is expensive, many SMEs just ignore a demand for royalties and they never come back. So patents can be a serious impediment but they tend to be very erratic in how they actually affect the marketplace. Many SMEs will never actually be affected at all, although some may end up having bad luck and getting that letter that they wished they had not.
MB: You talked a little bit already about the differences between the US and the EU on patent regulation. In the EU software is officially not patentable – though there are ways to get around this. At the same time, in the US we have seen some recent developments (such as the Alice vs CLS case) that indicate a will to curb the limitless patentability of software. Do you think there is some level of convergence between the EU and the US on patent regulation, are we going towards some sort of a common system and is that something that is desirable?
AU: No, personally I have not seen any indications that the EU would be likely to budge, and indeed I think that the EU is becoming progressively more sophisticated about the importance and the values of Openness, and the grant of patents is, of course, a step in the opposite direction. In the US, I think that there is the ability for incremental reform, but it is difficult for me to imagine in my lifetime any fundamental change in patent reform. Indeed most of the legislative actions in the US have been in the opposite direction, e.g. with copyright being lengthened. By the way, there is some danger of that happening in the EU as well, which I find regrettable. I think that an author of a copyrighted work certainly deserves the benefit from it during their lifetime, but I do not think that it needs to be a thousand years. I think there is some vulnerability in the EU on that.
“In some ways, the most restrictive jurisdiction can win, even though its formal legal reach ends at its borders.”
The thing that provides some concern about the EU however, is that the US is such a large market and IT products and services are by definition global in order to be successful. If a vendor of a product or service can be sued in the US, that is a very substantial impact on their business. Particularly, when you get into things like hardware or mobile devices or chips where access to a global marketplace is essential in order to make the participation economically viable. So even when a patent would not be infringed in the EU, this could nonetheless be an enormous or maybe even fatal impediment to an inventor in the EU. Convergence of laws is not in some ways necessary to have an impact, because of the de facto economics of the marketplace. In some ways, the most restrictive jurisdiction can win, even though its formal legal reach ends at its borders.
MB: That is a trend that we have also seen within the EU. Companies may launch court cases only in a couple big countries, and that is often enough to put their competitors in a difficult situation. If you initiate a lawsuit in Germany, then you already have a very substantial part of the European market; you do not necessarily need to launch suits in each of the 27 other Member State.
AU: One thing I should say is that one of the results of the recent mobile platform wars where Apple, Samsung, Google, Motorola and others were suing each other is that the courts have fairly widely ruled that a company cannot get an injunction for infringement of a Standard Essential Patent. What that means is that the companies can fight it out in court to see who owes who money, if one does, but they cannot stop for example a European vendor from exporting its products into the US because there is an argument over whether a patent used in a standard is being infringed. So that is at least a modest step that undercuts the observation I made a minute ago.
MB: Let us jump to another topic. I saw that you have just finished writing your second book of fiction, which was self-published just like the first. Can you tell us what it is about?
“One thing I should say is that one of the results of the recent mobile platform wars where Apple, Samsung, Google, Motorola and others were suing each other is that the courts have fairly widely ruled that a company cannot get an injunction for infringement of a Standard Essential Patent.”
AU: I have written the equivalent of around twenty books on different areas on standards and standard setting on my web site, Consortiuminfo.org, since I started it, but a few years ago I decided to try my hand at fiction and wrote a cybersecurity thriller called “The Alexandria Project”. All of which is actually not only technically accurate, but much of which I wrote has actually happened since then, which is a little spooky.
The new book, which will be out around the end of June, is about hacking a presidential election. One of the underlying themes is the idea that the US has not always done the best of jobs in electing presidents. One of the underlying premises of the book is a group of hackers in Europe deciding that if the US wants to decide that it can elect the leader of the Free World, maybe some other countries ought to have a say in the matter. That gives you sort of a hint about where the book might take you.
MB: Any last remarks before we wrap this up?
AU: The only parting thought I will share is that Openness matters, and Openness is in the hands of the legislators, and legislators listen to voters. So I would encourage all of the readers to remember that their voices matter and that it is their voices that can make things happen.