Sometimes you just have to write a response to a comment up here at the top level of the blog rather than down in the depths of the comments section. Matt Asay took my last posting and went to town on it (although he had a more thoughtful approach to it on his other blog – where he finds the time I do not know). He, although I am loathe to say it, had a good point that I want to think more about. But the rest of his response on the InfoWorld blog doesn’t quite do it for me.
I’ll start with the good part of Matt’s comments. I like the point about the opaqueness of IP and the implications of that. A difficult one to be sure given how the business strategies around IP have developed over the years. I have long advocated a simple equation: transparency increases trust. But, I am also a believer in the caveat that perfect transparency does not equate with perfect trust. So, to the point about the role of transparency – one point to Asay. To the effect of transparency on business negotiations regarding IP – I am not ready to opine on that as I want to understand it far more deeply before I decide.
Matt also has a point about the nature of large IP holders vs. small. Clearly, the large IP holders are looking to use their assets to their advantage. Ok, fine. But the majority of patents in the U.S. are held by small companies. Many small players do look to a critical piece of IP to sustain their business. Now, they may not think of it in those terms, but if someone were to attempt to steal it, they would certainly turn to the IP law books to help them out.
I look at standards, or standards organizations to be more exact, to illustrate the point I was getting at. A standards organization is really a legal framework in which contributors and implementors alike may come together to collaborate. This collaboration is built upon a trust matrix that is absolutely framed by the IPRs. In fact, standards organizations are also legal frameworks that enable competitors to collaborate in such a way so that they do not come into conflict with anti-trust considerations as well. Now, I am not advocating (excuse the pun) for more lawyers. Nor I am singing a song about IPRs to no end. I am more interested in how we can progress around the topic of IP in general.
Open Source Software has absolutely moved the chess pieces around in the IP arena. The GPL is a sword and a shield. Look at the import of trademark to Red Hat. Think about the un-weighting of copyright and trade secret, and the natural increase of importance in patent and trademark. Powerfull stuff.
Over the past 6 years, my company has been wrestling with these changes and looking at how those changes affect our business. The report I reference in my last blog posting speaks to the fact that Sr. Executives of European firms are going through a similar process of addressing how IP can be used proactively to facilitate business growth (and not necessarily through enforcement, but rather through collaboration). Microsoft takes a full-spectrum view of IP and how it may be applied to the business. We now have a team that focuses on IP assets as a means of venture investment. We have folks that look at collaborations between companies. We are always focused on making sure our products are cleared for commercial consumption. There is more, but that is not what this posting is about.
I get it that there are problems with the system. But I don’t think that discounting the idea that IPRs create a framework for callaboration has merit either.