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July 15 2011

Developer Week in Review: Christmas in July for Apache

Only a few weeks left until OSCON. Alas, I won't be making it this year. I'm taking a few weeks with the family in August to drive down the California coast, and with a major software delivery coming up at work, I just don't have the time for another trip out west. So raise a glass for me, it looks like it'll be a blast.

Meanwhile ...

IBM hands off Lotus Symphony

It seems like everyone these days is in a gifting mood these days, and the various open source foundations are the benefactors. Sun gave OpenOffice to Apache, Hudson went to Eclipse, and now IBM has left a big bundle of love on Apache's doorstep containing Lotus Symphony, with a note asking Apache to give it a good home.

It makes sense for IBM to make the gift, since Symphony was built on top of OpenOffice. Speculation abounds that Apache will merge the Symphony codebase into the mainline OpenOffice source, creating the One Office Suite to Rule Them All (but remember, one does not simply send a purchase order to Mordor...)

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Your travel / patent guide to East Texas

If you work for a high-tech company, there's an increasing likelihood that you're going to be taking a trip out to East Texas sometime in your career. That's because there were 236 patent cases filed there in 2006 (up from 14 in 2003), and it's just kept growing since then.

Since you may have to travel out there because you're on the receiving end of a patent troll's suit, we provide the following handy guide to the area. We'll start with Marshall, Texas, with a population in the mid-twenty thousands. If you're there in the winter, stuck in Judge T. John Ward's courtroom, be sure to check out the Wonderland of Lights, and look for pottery deals year-round.

If your legal troubles bring you to Tyler, home of Judge Leonard Davis, make sure to bring your lightweight suits in the summer, as the average temperatures are in the mid-90s, and nothing spoils your testimony on user interface prior art more than embarrassing sweat stains.

Finally, if you draw Judge David Folsom, you'll be off to a city that actually straddles two states, Texarkana. Texarkana's main employer is the Red River Army Depot. Other than that, it has a depressingly sparse Wikipedia page, so maybe you should hope you end up in one of the other venues.

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June 22 2011

Developer Week in Review: Start your lawyers!

Summer is here, so it's time to hit the beach and soak up some sun. You know, sun? That bright yellow ball that blinds you whenever you go out for Doritos and Mountain Dew in the middle of a 48-hour hackathon? I'm told it's actually quite pleasant to be around, once you get acclimated to it. Still, probably better to stay inside, avoid the evil day star, and see what's been happening in the World of Geek this week.

Get your lawsuits

Samsung and AppleIn the latest chapter of "As the Smartphone Turns," Samsung has accused Apple of fathering an illegitimate child with it when Samsung had amnesia, gotten as a result of being hit on the head by an old Motorola bag-phone while trying to save RIM from ending up destitute on the street.

Not really, but the realities of Samsung v. Apple are almost as bizarre. This week, a US district judge told Samsung that, no, you don't get to see previews of the iPad 3 and iPhone 5. This comes as Samsung continues to be Apple's largest supplier of semiconductor technologies. There must be some awesome screens set up to let Apple shovel money into Samsung's bank account while at the same time suing them.

Also in "Intellectual Property Gone Wild" news this week, Oracle is evidently asking for (cue Carl Sagan voice) billiuns and billiuns of dollars as penalties in their Java suit against Google, which means that Google might actually need to clean out the petty cash drawer and make a trip to the bank. And Apple has paid off Nokia to settle a long-running patent suit between the two companies. And BitTorrent came under attack this week when they were sued for violating a "submarine" patent on file distribution granted in 2007. Litigation, the growth sector of the American economy!

In related news, I got a notice this week that my own trademark application will be approved in three months if no one objects. Watch out world, I'm gonna have some IP soon, and I'm not afraid to use it!

Please remember to stretch before logging into your PC

Folks have been hacking the Kinect for a while now, hooking it up to all sorts of esoteric devices that aren't XBoxen (and just what is the group noun for an XBox? A Lanparty of XBoxes?). Now Microsoft has decided to make Kinect hacks officially supported, at least if you run Windows. With the release of the Kinect SDK for Windows, developers can finally make desktop users flail around awkwardly, just like their gaming counterparts.

With the release of the SDK, Windows hackers will gain access to a powerful vision recognition system, and it will be interesting to see what the first third-party Windows applications to come out will look like. Somehow, I suspect it'll have something to do with porn ...

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Where were you when the IPv6 turned on?

The one-day IPv6 lovefest earlier this month didn't seem to break anything significant, but on the other hand, it didn't seem to do much to promote the adoption of IPv6 either. Unless you happen to be one of the 12 people on the planet whose ISP allocates and routes IPv6, the only way to know that anything had happened at all was if you had an IPv6 tunnel set up with a broker such as Electric Hurricane.

With the IPv4 space "officially" exhausted, you'd expect there would be more urgency about this issue, but business seems to be proceeding according to the normal human emergency protocol (that's the one where you ignore a problem until it becomes a crisis, then run around like a chicken with it's head cut off). In the meanwhile, there are still quite a few active class A subnets lying around, each with 16 million addresses (here's a list). One must wonder how long it will be before pressure starts to be applied on entities such as HP (which owns two!) to start freeing them up for the good of the net.

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June 02 2011

Developer Week in Review: The other shoe drops on iOS developers

Bags packed? Check! Ticket printed? Check! "I (Heart) Steve" T-shirt worn? Check! Yes, it's that time of year, when the swallows return to Capistrano the developers return to San Francisco for WWDC. I'll be there Sunday to Saturday, so keep an eye out for me and maybe we can get a beer or something.

But even as we await the release of Lion, iOS 5 and iCloud, the world continues to turn.

Well, so much for Apple's big umbrella

App store screenshotLast week, iOS developers everywhere breathed a sigh of relief as Apple stepped up to the plate, and said that they considered their developer community to be covered under Apple's existing licensing agreement with patent holding company Lodsys. Lodsys, evidently, had a difference of opinion on the subject. This leaves the lucky seven developers who got hit with the first round of lawsuits with an interesting choice. Do they settle with Lodsys, perhaps paying out many times what they have brought in as income from their apps, or do they fight and face expensive legal fees and a lawsuit that could drag on for years?

Android developers shouldn't gloat too much at the misfortune of their iPhone counterparts, since Lodsys is asserting that two of their patents cover Android apps as well. Apple and Google are going to have to take things up another notch, and offer free legal services to their developers, or things could get quite messy, quite fast.

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OpenOffice finds a home at Apache

Oracle, as part of their ongoing shedding of all of their Sun acquisitions, had promised earlier in the year that OpenOffice would be given to some third party at some point. Well, that third party is Apache. Oracle will be donating the source code to Apache, where it will become an incubator project. For developers who have be interested in poking around with the guts of OpenOffice (or extending the functionality), but were leery of Oracle holding the strings, this announcement should eliminate any doubts. Statements from The Document Foundation (who split off a fork of OpenOffice) were guarded, but it seems like there's hope of reuniting the code streams, and avoiding yet another case of parallel development of the same "product."

Java rant of the week: Interface madness

As I am wont to do from time to time, I'd like to take a moment today to rant about a coding abuse that I see more and more frequently. That abuse would be the indiscriminate use of interfaces in front of implementing classes, usually with a factory. There are certainly places where the interface/factory pattern makes sense, such as when you genuinely do have multiple implementations of something that you want to be able to swap out easily

However, far too often, I see factories and interfaces used between classes simply because "we might" want to someday put something else in there. I recently saw an implementation of a servlet that called for authentication of the request. There's only one implemented version of the authentication code, and no real plans to make another. But still, there were Foo and FooImpl files sitting right there (there was probably a FooFactory somewhere, I didn't go looking ...)

Unneeded interfaces are not only wasted code, they make reading and debugging the code much more difficult, because they break the link between the call and the implementation. The only way to find the implementing code is to look for the factory, and see what class is being provisioned to implement the interface. If you're really lucky, the factory gets the class name from a property file, so you have to look another level down.

There's no excuse for doing this. It's anti-agile, and the refactor cost once you do genuinely do have a second version, and need an interface, is relatively low. End of rant.

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May 25 2011

Developer Week in Review: Apple devs cry "gimme shelter"

Another week of industry hijinks has passed, which means it must be time for another edition of the Developer Week in Review.

Apple offers some cover

App store screenshotAfter developer complaints that Apple was leaving them out to dry, in regards to the Lodsys patent threats being aimed their way, the House of Jobs stepped up to the plate and announced that they considered iOS developers to be covered by the existing licenses granted to Apple by Lodsys for in-game purchases.

This is a bit of a good-news, bad-news story from an intellectual property perspective, as it doesn't offer any relief to non-Apple developers from the patents themselves. Apple paid off Lodsys, which in a sense increases the perceived validity of the patents. Other non-Apple-based developers (such as Valve's Steam), could find themselves on the wrong end of a letter from Lodsys. Still, it lifts a bit of the uncertainty from the iOS space, but not all of it. Lodsys has not yet responded, and should they choose to follow an SCO model, the whole Apple development world could end up enmeshed in a long, messy lawsuit.

Speaking of which, Apple appears to be loading for bear in its various lawsuits with other smartphone makers, acquiring 200 mobile-related patents from Freescale. The have evidently decided that "he who ends the lawsuit with the most patents, wins."

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See, I knew there was a reason they bought Sun!

Continuing our ongoing coverage of Oracle's dismemberment of Sun's assets, this week brought news of something that Oracle is actually keeping. Revenue on the Oracle's acquired line of Sun hardware jumped 13% over the same quarter last year. However, since overall server sales grew by 12%, it's not like Oracle can take much solace from the figures, especially since the former market-leader now represents a feeble 6.5% portion of the server business. "At least we didn't lose any more market share" isn't a particularly motivating battle cry.

At this point, Sun hardware appears to be stuck in the position that Apple used to be in — an expensive boutique brand in the minority. I have a hard time seeing Larry Ellison pulling a hardware rabbit out of his hat, the way Steve Jobs did.

Sony, security spelled backwards

Does Sony lock the doors at their main headquarters when they go home at night? Does Ryoji Chubachi leave the keys to his car in the ignition on a regular basis? That's certainly the impression you might have of the corporate giant after the third wave of SQL-injection-based attacks struck Sony this week, this time targeting Canadian and Asian sites. Although these latest attacks are dwarfed in scope by the massive data losses suffered by the Playstation Network and Sony Online Entertainment, the continual barrage of attacks must seem like the death of 1,000 cuts to Sony by now.

More to the point, it is hard to imagine that consumers will be enthusiastic about sharing any of their personal data with Sony after a month of horrific press. As I've mentioned in the past, the cost of not sanitizing your input data is so high, and the effort so small, that it should practically be a capital offense to neglect it.

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May 12 2011

April 21 2011

Four short links: 21 April 2011

  1. Rubular -- a way to write and test regular expressions interactively. Very cool. (via Adam Fields)
  2. gitx -- OSX ui for git. (via Marc Hedlund)
  3. Open Source Critical to Competition (Simon Phipps) -- DOJ and German Federal Cartel Office see danger for open source in Novell's patents being acquired by a consortium of Oracle, Microsoft, Apple, and EMC (fancy!) and are taking steps to ensure open source is protected.
  4. My Talk about Samuel Pepys's Diary as an Online Story (Phil Gyford) -- I love the ways Phil has stretched and repurposed the web's affects for storytelling. Listen to this talk. (via BoingBoing)

April 06 2011

Developer Week in Review

Spring came in like a lion here in the Northeast, with an April Fools' Day mini-blizzard, even though Lion itself isn't due to be released until summer at the earliest. While I waited for more hospitable weather to emerge, I've been huddled indoors working on a Kickstarter project with my son, and I will now shamelessly plug it: It's a high-powered replacement for the Wii sensor bar, designed to let you sit comfortably at the other end of a room while you use your Wii. You can read more about it here if you're interested.

Meanwhile, there were the usual interesting developments in the developer world.

Google: Now promoting gray as a moral choice

Like most major technology companies, it can sometimes be hard to judge where Google lies on the moral spectrum. However, the King of Search took moral ambiguity to a new level this week with a press release that basically said:

  • Software patents are evil
  • But all the other cool kids are doing it.
  • And if we don't get some, we can't defend ourselves.
  • So we're making a move for the Nortel patent portfolio.
  • And if we get it, we'll use it to protect open source, sweetness and apple pie, but in ways we aren't spelling out precisely.

It's nice to say that acquiring the Nortel patents will protect Android and Chrome from patent attacks, but unless the portfolio is placed in a trust it will remain a weapon that Google can use against anyone they choose. Unless they are legally fenced off, Google could break their word at any time. I'm not saying that they would, but if they suddenly decided they wanted to take out the iPhone, for example, they could point the patent missile at Apple, and all the iOS developers would get caught in the crossfire.

The real solution, of course, is to get rid of the loathsome things all together. But in a political climate where former RIAA lobbyists become federal judges ruling on file sharing cases and corporations are writing international intellectual property law using the U.S. government as a proxy, my hopes that this will get fixed anytime soon are low.

Can Hollywood pass the Turing Test?

News has emerged of a feature-length documentary in production on the life of Alan Turing. If there's a figure in computer science who needs to be better known by the general public, Turing is certainly a good candidate. However, if the trailer is anything to go by, it doesn't look like it's going to break any box-office records. Consisting entirely of talking heads, das blinkenlight computers and photo stills, it won't give "Freakonomics" or "An Inconvenient Truth" a run for their money in the audience captivation department.

There are lots of early computer pioneers who deserve better exposure, such as John von Neumann and Alan Kay, and it would be great if someone did a Connections-style series linking how we got from Babbage to the iPhone. Turing's story has particular pathos, because of how his sexual preference set events in motion that robbed the world of a gifted computer pioneer, but it doesn't look like this movie is going to tell it in a way that will appeal to a general audience.

April Fools' on Google's April Fools'

It's become a yearly ritual for Google (along with ThinkGeek and Slashdot and myriad others) to flood the web with fake products and stories on 4/1. This year, one of Google's fake product announcements was for Gmail Motion, a product that would let you operate Gmail using body language. Some folks over at USC thought it was a great idea, so they decided to implement Google's interface, using a Microsoft Kinect:

It was a cute idea, but I think they should have put their efforts behind this gag Google product, which I've been dying to see appear in the real world.

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March 23 2011

Four short links: 23 March 2011

  1. The Heritage Health Competition -- Netflix-like contest to analyze insurance-claims data to develop a model that predicts the number of days a patient will spend in hospital in the coming year. $3M prize. (via Aza Raskin)
  2. Historically Hardcore -- fantastic fake Smithsonian ads that manage to make the institution sexy. Naturally they've been asked to take them down.
  3. Another Plato Innovation Ignored -- turns out the above-the-fold doodle has a long and glorious history, culminating in a fantastic demonstration of our broken patent system.
  4. Graphite -- Enterprise scalable realtime graphing. Apache 2.0-licensed, written in Python. (via John Nunemaker)

January 12 2011

Developer Week in Review

Now firmly seated in the New Year, your week in review returns to its normally scheduled programming.

No sale for Novell?

As reported in the Year in Review, Novell had plans to sell a chunk of Unix intellectual property to CPTN Holdings, a consortium that includes Microsoft, Apple, EMC and Oracle. This reopened the fear that Linux would come under patent attack. Last week, it was reported that the deal was evidently off, but according to Microsoft, it was just a procedural thing with German regulators, and the process is moving ahead according to plan.

Assuming this sale goes through, it will remain to be seen if the Gang of Four takes the next step and tries to prosecute any of the patents against the open source community. It's possible that they intend to use them against other companies, or as protection against IP actions. But given Microsoft's history in the SCO controversy and the company's feelings about Linux, it is also possible that pigs will fly.

The worst kept secret in the Industry

If you haven't heard that Apple finally inked a deal with Verizon this week, you should consider subletting the rock you've been hiding under. The interesting question that no one seems to be asking is if this is going to start the fractionalization of the iOS developer community. The Verizon version of the iPhone will ship with a mobile hotspot feature that the AT&T version lacks, and you can't help but wonder if other differences will creep into the iPhone over time as different carriers put different restrictions and requirements on the platform. One of the major selling points of the iPhone is that there has been little platform diversity for developers to deal with, apart from some sensors and the iPad. If too much branching of the hardware and software platform occurs, Apple could find themselves in the same boat with Android.

We also know that certain apps were banned from the App Store because AT&T objected to them. Will apps now have to pass muster for two different carriers, or will we start to see AT&T and Verizon-only applications?

Tablets, tablets, tablets!

That yearly pilgrimage of tech-heads, CES, has ended, and the big news for software developers is that tablets appear to be the new black. Multiple vendors showed off iPad wannabes at CES, many based on Android, a few on Linux, and a few running Windows.

Smartphones have already changed how software is developed, as applications have moved away from the keyboard-and-mouse input model. But until now, desktop-level applications have still clung to the old way. As tablets start to replace notebooks and netbooks, we're likely to see development shifts in productivity and enterprise applications that traditionally were tethered to a keyboard.

What does the future hold for those who code? My crystal ball is currently installing update 2 of 543, so I guess you'll have to check back here next week to find out. Suggestions are always welcome, so please send tips or news here.


November 06 2010

Obama's Broken Promises on IP and Meds

President Obama travels today to India for the first time since his election, arriving on November 6. His trip will feature high-level meetings organized by powerful U.S. and European corporate interests, including an address to the U.S.-India Business Council, a corporate interest group hosted by the U.S. Chamber of Commerce that includes all major multinational pharmaceutical companies among its members. U.S. Assistant Secretary of Commerce Suresh Kumar confirmed last week on the sidelines of a business conference that securing more restrictive intellectual property rights for U.S. companies was a key U.S. demand. He said, ?[the US is] lobbying to do here, to protect international property rights, to protect our patents.?

September 15 2010

Four short links: 15 September 2010

  1. Privacy Commission Uses CC License For Content -- The office of the New Zealand Privacy Commissioner is releasing its content under the CC-BY license, including fact sheets, newsletters, guidance, case studies, howtos, and more.
  2. Magic iPad Light Painting (BERG London) -- continuing their stunning work, this concept video uses a form of long-exposure stop-motion to turn the iPad into visual magic.
  3. Implementing TLS and Raw Sockets Using Only Flash and Javascript -- interesting first steps to implementing non-trivial security in Javascript ("The Language Of The Future (tm)"). (via ivanristic on Twitter)
  4. How to Read a Patent in 60 Seconds (Dan Shapiro) -- quick guide to the important parts of a patent. For more detail, check out the more detailed docs from the PatentLens.

August 30 2010

Four short links: 30 August 2010

  1. Free as in Smokescreen (Mike Shaver) -- H.264, one of the ways video can be delivered in HTML5, is covered by patents. This prevents Mozilla from shipping an H.264 player, which fragments web video. The MPEG LA group who manage the patents for H.264 did a great piece of PR bullshit, saying "this will be permanently royalty-free to consumers". This, in turn, triggered a wave of gleeful "yay, now we can use H.264!" around the web. Mike Shaver from Mozilla points out that the problem was never that users might be charged, but rather that the software producer would be charged. The situation today is just as it was last week: open source can't touch H.264 without inviting a patent lawsuit.
  2. Crowdsourcing for Pakistan Flood Relief -- Crowdflower are geocoding and translating news reports from the ground, building a map of real-time data so aid workers know where help is needed.
  3. Dirpy -- extract MP3 from YouTube. Very nice interface. (via holovaty on Delicious)
  4. Three Rules of Thumb for Bloom Filters -- Bloom filters are used in caches and other situations where you need fast lookup and can withstand the occasional false positive. 1: One byte per item in the input set gives about a 2% false positive rate. For more on Bloom Filters, see Maciej Ceglowski's introduction. (via Hacker News)

August 09 2010

Four short links: 9 August 2010

  1. Maslow's Hierarchy of Robot Needs -- born to be a t-shirt. (via waxy)
  2. -- read Twitter as a daily newspaper. An odd mashup of the hot new tech and the failing old. Will newspapers live on with modern meanings, like "records" and "cab"?
  3. Eureqa -- software tool for detecting equations and hidden mathematical relationships in your data. Appears to be a free-as-in-beer service with open source client libraries. (via Pete Warden)
  4. Samsung Patents Tablet with Front and Rear Touch Input -- The idea is to let users control the device without touching the screen, and perhaps allow them to perform multi-touch inputs from the screen side and the rear side at the same time. (via azaaza on Twitter who says he worked on it at Samsung four years ago)

July 21 2010

Why software startups decide to patent ... or not

Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She teaches courses on intellectual property, cyberlaw, and information privacy, and she has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes. The following column will also appear in the November 2010 issue of Communications of the ACM.

Two-thirds of the approximately 700 software entrepreneurs who participated in the 2008 Berkeley Patent Survey report that they neither have nor are seeking patents for innovations embodied in their products and services. These entrepreneurs rate patents as the least important mechanism among seven options for attaining competitive advantage in the marketplace. Even software startups that hold patents regard them as providing only a slight incentive to invest in innovation.

These are three of the most striking findings from our recently published article, "High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey."

After providing some background about the survey, this column will discuss some key findings about how software startup firms perceive, use and are affected by the patent system.

While the three findings highlighted above might seem to support a software patent abolitionist position, it is significant that a third of the software entrepreneurs reported having or seeking patents, and that they perceive patents to be important to persons or firms from whom they hope to obtain financing.

Survey background

More than 1,300 high technology entrepreneurs in the software, biotechnology, medical devices, and computer hardware fields filled out the Berkeley Patent Survey. All of these firms had been started no more than ten years before the survey was conducted. We drew our sample from a general population of software firms registered with Dun & Bradstreet (D&B) and from the VentureXpert (VX) database that has a rich data set on venture-backed startups. (Just over 500 of the survey respondents were D&B firms; just under 200 were VX firms.)

Eighty percent of the software respondents were either the CEOs or CTOs of their firms, and most had experience in previous startups. The average software firm had 58 employees, half of whom were engineers. Between 10 and 15 percent of the software startup respondents among the D&B respondents were venture-backed firms. Among the software respondents, only 2 percent had experienced an initial public offering (IPO), while 9 percent had been acquired by another firm.

Our interest in conducting this survey arose because high technology entrepreneurs have contributed significantly to economic growth in recent decades. They build firms that create new products, services, organizations, and opportunities for complementary economic activities. We were curious to know the extent to which high tech startups were utilizing the patent system, as well as to learn their reasons for choosing to avail themselves of the patent system -- or not.

The basic economic principle underlying the patent system is that technology innovations are often expensive, time-consuming, and risky to develop, although once developed, these innovations are often cheap and easy to copy. In the absence of intellectual property rights (IPRs), innovative high tech firms may have insufficient incentives to invest in innovation insofar as they cannot recoup their research and development (R&D) expenses and justify further investments in innovation because of cheap copies that undermine the firms' recoupment strategy.

Although this economic principle applies to all companies, early-stage technology firms might, we conjectured, be more sensitive to IPRs than more mature firms. The former often lack various kinds of complementary assets (such as well-defined marketing channels and access to cheap credit) that the latter are more likely to enjoy. We decided it would be worthwhile to test this conjecture empirically. With generous funding from the Ewing Marion Kauffman Foundation, we and two other colleagues designed and carried out the survey and analyzed the results.

Why startups decide to patent -- or not to

The most important reasons for seeking patents, as reported by the software executives who responded to the Berkeley Patent Survey, were these:

  1. to prevent competitors from copying the innovation (2.3 on a 4 point scale, where 2 was moderately important)
  2. to enhance the firms’ reputation (2.2)
  3. and to secure investment and improve the likelihood of an IPO (1.96 and 1.97 respectively)

The importance of patents to investors was also evident from survey data showing striking differences in the rate of patenting among the VX and the D&B software companies.

Three-quarters of the D&B firms had no patents and were not seeking them. Because the D&B firms are, we believe, typical of the population of software startup firms in the U.S., their responses may be representative of patenting rates among software startups generally. It is, in fact, possible that the overall percentage of software startup patenting is lower than this, insofar as patent holders may have been more likely than other software entrepreneurs to take time to fill out a Berkeley Patent Survey.

In striking contrast to the D&B respondents, over two-thirds of the VX software startup respondents in the sample, all venture-backed, had or were seeking patents. We cannot say why these VC-backed firms were more likely to seek patents than other firms. Perhaps VCs are urging the firms they fund to seek patents; or VCs may be choosing to fund the development of software technologies that VCs think are more amenable to patenting.

Interestingly, the rate of patenting did not vary by the age of the firm (that is, older firms did not patent at rates statistically significant from younger firms).

Why forgo patenting?

The survey asked two sets of questions about decisions to forego patenting: For the last innovation for which the firm chose not to seek a patent, what factors influenced this decision, and then what was the most important factor in the decision?

The costs of obtaining and of enforcing patents emerged as the first and second most frequent explanation. Twenty-eight percent of the software startups reported that the costs of obtaining patents had been the most important factor in this decision, and 12 percent said that the costs of enforcing patents was the most important factor. (They reported that average cost of getting a software patent was just under $30,000.)

Ease of inventing around the innovation and satisfaction with trade secrecy also influenced software startup decisions not to seek patents, although only rarely were these factors considered the most important.

Intriguingly, more than 40 percent of the software executive respondents cited the unpatentability of the invention as a factor in decisions to forego patenting, and almost a quarter of them rated this as the most important factor. Indeed, unpatentability ranked just behind costs of obtaining patents as the most frequently cited "most important factor" for not seeking patents.

It is difficult to know what to make of the unpatentability finding. One explanation might be that the software entrepreneur respondents believed that patent standards of novelty, non-obviousness, and the like are so rigorous that their innovation might not have satisfied patent requirements. Yet, because the patentability of software innovations has been contentious for decades, it may also be that a significant number of these entrepreneurs have philosophical or practical objections to patents in their field.

How important are patents to competitive advantage?

One of the most striking findings of our study is that software firms ranked patents dead last among seven strategies for attaining competitive advantage identified by the survey, as Figure 1 below shows. (The relative unimportance of patents for competitive advantage in the software field contrasts sharply with the perceived importance of patents in the biotech industry, where patents are ranked the most important means of attaining such advantage.)

Figure 1: Measures of Capturing "Competitive Advantage" from Inventions

Measures of Capturing Competitive Advantage from Inventions

As Figure 1 shows, software startups regard first-mover advantage as the single most important strategy for attaining competitive advantage. Next most important was complementary assets (e.g., providing services for licensed software or offering a proprietary complement to an open source program).

Interestingly, these two strategies for getting ahead in the market outstrip the IPRs about which we inquired for software firms. Among IPRs, though, copyrights and trademarks, closely followed by secrecy and difficulties of reverse engineering, outranked patents as means of attaining competitive advantage among software respondents by a statistically significant margin.

What incentive effects do patents have?

The Berkeley Patent survey asked startup executives to rate the incentive effects of patents on a scale, where 0 = no incentive, 1 = weak incentive, 2 = moderate incentive, and 3 = strong incentive, for engaging in four types of innovation: (1) inventing new products, processes, or services, (2) conducting initial R&D, (3) creating internal tools or processes, and (4) undertaking the risks and costs of commercializing the innovation.

We were surprised to discover that the software respondents reported that patents provide only weak incentives for engaging in core activities, such as invention of new products (.96) and commercialization (.93). By contrast, biotech and medical device firms reported just above 2 (moderate incentives) for these same questions.

Interestingly, the results did not change significantly even when focusing only on responses from software entrepreneurs whose firms hold at least one patent or application. Even patent-holding software entrepreneurs reported that patents provide just above a weak incentive for engaging in these innovation-related activities.

Resolving a paradox

If patents provide only weak incentives for investing in innovation among software startups, why are two-thirds of the VX firms and at least one-quarter of the D&B firms seeking patents?

The answer may lie in the perception among software entrepreneurs that patents may be important to potential funders, such as venture capitalists (VCs), angel investors, other firms, commercial banks, and friends and family. Sixty percent of software startups that had negotiated with VCs reported that that they perceived patents to be an important factor in VC decisions about whether to make the investments. Between 40 and 50 percent of the software respondents reported that patents were important to other types of investors, such as angels, investment banks, and other companies.

How well is the patent system working?

While most of the Berkeley Patent Survey questions focused on what firms had actually been doing vis-à-vis patents, we decided to ask a few questions to gauge the perception of high tech entrepreneurs about the patent system. We asked, for example, how well the entrepreneurs perceive the patent system to be working for them and for their industry. The scale for responses ranged from 0 = very poorly to 4 = very well, and 2 = neither poorly or well.

The software entrepreneurs' for-my-industry rating was 1.6 and their for-my-firm rating was 1.7. Both results tend toward the poorly end of the scale (in contrast to the biotech and medical device firms that reported above 2 ratings on both questions).

It is interesting is that the VX firms were slightly less positive about the patent system than the D&B firms, although the difference was not statistically significant. We also tested to see if the responses were bipolar (that is, did some software firms rate the patent system very poorly and their ratings canceled out by some positive responses?), but discovered that the ratings fell into a normal distribution, suggesting that we had drawn a sample from a cross-section of the population.


Over the next several years, we expect to engage in further analysis of the results of the 2008 Berkeley Patent Survey and to report new findings about the roles that patents play in the software industry. The initial findings reported here and in the larger article suggest that software entrepreneurs do not find persuasive the canonical story that patents provide strong incentives to invest in technology innovation. These executives regard first-mover advantage and complementary assets as more important than IPRs in conferring competitive advantage upon their firms. Moreover, among IPRs, copyrights and trademarks are perceived to be more important than patents. Still, about one-third of our software entrepreneur respondents reported having or seeking patents, and their perception that their investors care about patents seems to be a key factor in decisions to obtain patents.



Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, & Ted Sichelman, High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, Berkeley Technology Law Journal, 25:4, pp. 1255-1327 (2010), available at

About the Authors:

Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law & Information, University of California, Berkeley.

Stuart J.H. Graham is on leave from his position as an Assistant Professor at the Georgia Institute of Technology, College of Management, to serve as the Chief Economist for the U.S. Patent & Trademark Office (USPTO). The views expressed in this article are his own, and are not the views of the USPTO.

July 14 2010

Four short links: 14 July 2010

  1. Flume -- Cloudera open source project to solve the problem of how to get data into cloud apps, from collection to processing to storage. Flume is a distributed service that makes it very easy to collect and aggregate your data into a persistent store such as HDFS. Flume can read data from almost any source - log files, Syslog packets, the standard output of any Unix process - and can deliver it to a batch processing system like Hadoop or a real-time data store like HBase. All this can be configured dynamically from a single, central location - no more tedious configuration file editing and process restarting. Flume will collect the data from wherever existing applications are storing it, and whisk it away for further analysis and processing. (via mikeolson on Twitter)
  2. How Microbes Defend and Define Us (NYTimes) -- there's been a lot of talk about the microbiome at Sci Foo in the last few years, now it's bubbling out into the world. Turns out that "bacteria bad, megafauna good" is as simplistic and inaccurate as "Muslim bad, Christian good". Fancy that. (via Jim Stogdill)
  3. Startup Model Patently Flawed (Nature) -- "There is a lot of stuff that academics are realizing isn't patentable but they can commercialize for themselves by starting a company," says Scott Shane, an economist at Case Western Reserve University in Cleveland, Ohio, and a co-author of the study. Because surveys of entrepreneurial activity — including government assessments — typically focus on patent activity, they may be significantly underestimating academics' efforts, he notes. (via pkedrosky on Twitter)
  4. Open Data on Russian Government Spending (OKFN) -- a group outside government is adding analytics to the data that departments are required to release.

June 03 2010

Four short links: 3 June 2010

  1. How to Get Customers Who Love You Even When You Screw Up -- a fantastic reminder of the power of Kathy Sierra's "I Rock" moments. In that moment I understood Tom's motivation: Tom was a hero. (via Hacker News)
  2. Yahoo! Mail is Open for Development -- you can write apps that sit in Yahoo! Mail, using and extending the UI as well as taking advantage of APIs that access and alter the email.
  3. Canon Hack Development Kit -- hack a PowerShot to be controlled by scripts. (via Jon Udell)
  4. 10TB of US PTO Data (Google Books) -- the PTO has entered into a two year deal with Google to distribute patent and trademark data for free. At the moment it's 10TB of images and full text of grants, applications, classifications, and more, but it will grow over time: in the future we will be making more data available including file histories and related data. (via Google Public Policy blog post)

March 31 2010

Four short links: 31 March 2010

  1. ZeroMQ -- bold claim of "Fastest. Messaging. Ever." LGPL, C++ with bindings for many languages, past version 2 already. (via edd on Twitter)
  2. Prediction Market News (David Pennock) -- HSX is going to be a real marketplace with real $. The real HSX will of course say goodbye to the virtual specialist and the opening weekend adjust, two facets of the game that make it fun to play, but that create significant amounts of (virtual) wealth out of thin air. The Cantor Gaming group is engaged in other interesting initiatives. They are taking over a sportsbook in Las Vegas and turning it into more of a derivatives exchange with live in-game betting, a step toward my dream of a geek-friendly casino. Interestingly, another company called Veriana Networks is close to launching a competing Hollywood derivatives market called the Trend Exchange.
  3. A Pivot Visualization of my Wordpress Blog (Jon Udell) -- using pro-am data exploration tools from Microsoft (Pivot) to work with information from his blog. Contains the scripts he used to do it.
  4. Select Committee Report on Patents Bill (PDF) -- New Zealand Government select committee recommends no software patents in NZ. We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect [footnote: Under the Patents Act 1953 mathematical algorithms as such are not patentable. They may be patented under the Patents Act when used in a computer, so long as they produce a commercially useful effect.] Open source, or free, software has grown in popularity since the 1980s Protecting software by patenting it is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no "inventive step" in software development, as "new" software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

March 26 2010

How do we measure innovation?

In response to the IEEE's report on Patent Power, which lists the top companies ranked by number of patents, Ari Shahdadi and Brad Burnham made trenchant comments in email that I thought were worth sharing (with their permission):

Ari wrote:

The main article is sad to read, with choice quotes like this: "Clearly, the global recession seriously hampered innovation in the United States." If I'd like to do anything, it's end the use of patenting statistics as a metric for innovative activity, especially by groups like the IEEE.

Brad responded:

Amen - R&D spending is also a bad indicator because so much is wasted in big companies. The methodology should have something to do with end user utility. Facebook has had a bigger impact on more lives than IBM and they don’t spend a fraction of what IBM spends on R&D or on patents.

I totally agree with both Ari and Brad, but just wishing that people would use another metric won't make it happen. How might we construct a metric that would reflect the transformative power of the web (no patents), Google (nowhere near as many as their innovations), Facebook (ditto), Amazon (ditto, despite the 1-click flap), Craigslist, Wikipedia, not to mention free software such as Linux, Apache, MySQL and friends, as well the upwelling of innovation in media, maker culture, robotics... you name it: all the areas where small companies create new value and don't have time, money or inclination to divert effort from innovation to patents?

I've long been mindful of the power of synthetic indexes. How many people who religiously check the Dow or the Nasdaq know which companies it actually represents?

It seems to me that there ought to be a way to measure the introduction of new products, and rank them by novelty and by widespread acceptance, in some way that reflects a more substantial measure of innovation and its impact on the economy.

I'd love your thoughts about what could go into such a measure.

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