Patent WMDs

No, we are not talking about patenting WMDs. We are talking about how patents have become WMDs destroying real creativity and competition.  The recent Apple vs. Samsung patent fight has yet again underlined how broken the patent system has become.This is what patents were supposed to do:

A patent was conceived as a bargain (an exchange)  between an inventor and society, where because the society deems the invention worthwhile and the inventor might not share it otherwise, it grants the inventor a period of right to practice his invention exclusively in return for disclosing the invention (i.e. teaching society how to practice the invention after the exclusivity period expires).  

Let's parse it point by point:

1. an inventor conceives of an invention that is non-obvious, i.e. others would need to be taught by the inventor how to duplicate it
2. inventor will not disclose it unless given some protection
3. society agrees to grant the inventor a period of exclusive right to practice (profit from) the invention in return for immediate access to its benefits (at a monopolistic price) and a disclosure that would allow others to practice the invention after the exclusivity period expires.
4. the inventor enjoys the fruits of exclusive rights to the invention during the exclusivity period
5. the society enjoys the fruits of the invention after the the exclusivity period has expired

It is obvious how the patent process works in cases of fundamental inventions with long-term benefits,  such as novel methods of generating energy or life-saving drugs. The key point is that a patent is supposed to be about HOW to do something ("how to cure cancer"), which is non-obvious, not WHAT to do ("let's cure cancer"). It is in our interest to give the inventor something in return for their efforts inventing the cure for cancer. It is NOT in anybody's interest to give anybody anything in return for a program for bouncing icons or (worse yet) the mere idea of bouncing icons. A consumer can choose to pay for it, just like they would for a special color, but there is certainly no need for a "grand bargain" with the society to protect bouncing icons. 

What's missing in most patents (and pretty much all software patents) being issued and so fervently litigated today?

1. Patents are granted for inventions that are obvious. Most practitioners of the art can easily replicate the invention (e.g. bouncing icons in a user interface) without needing any help from the inventor. This means that the fundamental quid pro quo of a patent is never present - the society does not receive anything in return for granting exclusivity. Nobody will bother making bouncing icons? Doubtful... Everybody will end up implementing their own bouncing icons? Great!
2. There are no societal benefits from the invention after the exclusivity expires, again violating the fundamental spirit of the patent bargain.
3. The "inventor" enjoys a near-monopolistic position  in return for nothing other than going through the legal motions of patenting (obeying the "letter of the law"), without any of the benefits envisioned by the law ever being realized by anyone other than the "inventor".
4. The "inventor" most skilled at the patenting process is the one who becomes most successful and since patents are usually based on other patents and ability to play the patent game is limited by money, a bigger-is-more-likely-to-win dynamic is created.
5. Occasionally patents do go to trial where a number of lay people are expected to understand and appreciate the nuances outlined above as well as the nuances of some arcane technology, which turns the trial into a game of PR and marketing, where (again) the organization with more resources and skills in areas completely unrelated to inventing is most likely to prevail.

The net result has turned patents into weapons of a cold war-like game. It is a game accessible only to a few superpowers of industry, who are mostly at standstill, with legal MAD (Mutually Assured Destruction for our younger readers...:-) strategies of cross-licensing, using weapons that only have value in quantities sufficient to annihilate everything but are never intended to be used for purposes other than arms negotiations. We have also witnessed the emergence of large global arms dealers like IV, happy to supply all sides in the war.

The problem with this mad game is that we (the society, the people who struck the original bargain of patents) pay for it and we pay many times over: we pay through stifled innovation, we pay as consumers and we pay as shareholders. 

Whether Apple won or Samsung won is almost irrelevant if the game is rigged. The case had the wrong set of plaintiffs - we were missing.

This not a critique of inventiveness or patent lawyers - the author is an inventor and author of multiple patents. This is a critique of the present perversion of the spirit of the patent system that has been hijacked to erect artificial, anti-competitive barriers that stifle true innovation at a very high cost.

Cars go to the cloud - consumerization of everything

A piece in the Atlantic (h/t @katimz - thanks!) reminded us why consumerization is an unstoppable force and why it will have further impact beyond the I/T device space.

Consumerization (Wikipedia definition here) is usually defined as application of (or in some cases "reluctant but inevitable capitulation to") consumer information technologies in areas traditionally reserved for the enterprise. The fundamental force behind consumerization is the consumer market size, which creates an incredible level of scale, investment, innovation and fine-tuning for user acceptance, impossible to match in any other, narrower domain.

That's why Blackberry could never maintain its status as a "business-centric" device and compete with iPhones or Androids . That's why Enterprises ultimately lost the cloud battle (it's simply cheaper, simpler, and every user "gets it"). Yes - it had to be secure and reliable, but those were all consumer requirements as well, and ultimately it was the consumer scale that funded the development necessary to get to the level of performance at which purveyors of "enterprise-class" solutions simply lost the economic argument (see Google apps). Every employee is a consumer first (wasn't the case back when your first email came with your first job) - enterprises have to meet consumer-level user experience expectations, no matter what corporate I/T managers try to argue (see Apple).

We've been fans (and predictors of inevitability) of consumerization in I/T for many years. What is fun to watch now is the next chapter of consumerization: going beyond I/T, into areas of infrastructure, such as transportation and energy, as well as education and healthcare. We believe that the following, only slightly tongue-in-cheek law applies: 

Law of consumerization
If a consumer technology-based solution exists that is capable of fulfilling a market need, that solution is going to win. It will win because it is going to be cheaper, better and more user friendly due to scale and rapid, Darwinian evolution towards user acceptance .

What happens when you combine ubiquity and acceptance of mobile payment, apps, cloud data? It leads to a generational acceptance (and expectation!) of everything-as-a-service (EaaS?) and everything-as-an-App (EaaA?). When you combine smart phones with payment systems and GPS, throw in reliable, simple, inexpensive cars you get Zip-cars. Suddenly the answer to road congestion and seemingly intractable car-centricity of today's cities may not be the (unlikely) development of public transportation infrastructure, but a consumer technology-driven evolution of the existing infrastructure (roads) into something completely new. Take Zip-cars, make them electric and self-driving and the existing road infrastructure turns into something almost magical, with relatively little explicit infrastructure (road) investment! 

Consider the following (and maybe start a company or two - many people already have!):

• What happens when electric cars get applied to grid-level energy storage?
• What happens when mobile connectivity and advanced game sensors such as Kinnect get applied to medical diagnostics?
• What happens when the near-perfect tele-presence technology of video games gets applied to education?

What does this mean for investors and inventors?  If you think consumer technology doesn't apply to your domain you are probably wrong - you just need to figure out which one and how to leverage it.