Once More unto the Breach

Open Standards, Patents, and the Open Document Format Play

Bob Sutor (IBM, vice-president of standards and open source) recently posted a great discussion on defining an open standard.  This is important because we are still as an industry struggling to articulate the business relationship between standards and open source.  We also continue to try to articulate the business rationale that accounts for patents in the context of open source or standards.  One doesn't have to agree or disagree with software patents, but one does need to deal with the reality of their existence.

After laying out a set of criteria, and some discussion of the problems in definitions in this space, Bob offers the following perfect observation:

If you have read this and conclude "ha, we can't really get an open standard so we'll muddle through and do what we want", then you have misunderstood what I am talking about. Since most standards fall between closed and this "purely open" characterization, you need to decide what is important to you. For example, a government may decide that it really cares about Maintenance, Accession, and Implementation and will try to use standards that maximize those characteristics while being willing to concede a bit on Development and Modification by Others.

There isn't one "right" definition here, and the context is different for different developers and consumers of standards at different times. And yes, you might imagine Bob's example there was for the benefit of the Commonwealth of Massachusetts. 

Another recent post in this space that provides context based on the economics of participation is Andy Updegrove's blog discussion on standards and patent pools.  Andy is a standards lawyer (literally) at Gesmer-Updegrove and knows whereof he speaks.  Mid-post he delivers a great synopsis on the economic benefits of a patent pool.  One item left out of the list would be that the pool companies can also stand united against a lone litigious patent holder in the space. Remember: the point isn't to validate software patents, but rather to deal with their reality. 

Some good work has been done by a number of people attempting to define the term "open standard" with respect to the freedom to implement such standards in a royalty free unencumbered way.  Unfortunately, such definitions put the standards body in an indefensible position.  The open source definition applied by a community to its project rested within the control of that community.  The same can not be said for the open standards definitions that exist, in so far as an outsider to the group attempting to develop an open standard can arrive on the scene with a patent and put the definition of "open" at risk for that standards project. 

I've offered views on patents and standards before in the context of the OASIS IPR policy and around patents as no more than tickets to a negotiation.  The decision of the Commonwealth of Massachusetts to move to the Open Document Format, however, will bring this all back up for discussion. 

Microsoft is in a bind at this point.  They appear to have thought that by publishing the proprietary specifications for their Office formats, accompanied by a royalty free license for any essential patents, they would have a reasonable debating point that they were as "open" as any standard.  The fact that no one else has claimed to be implementing them doesn't help their case that they're trying to encourage multiple implementations, but then that probably wasn't their desire.  (And what about a license for other non-essential patents that might be infringed?  Are they to be royalty free as well, or is that the troll beneath the bridge to be brought out with the excuse that "it's our property".) 

This is not the first time Microsoft has been hit on royalty free patent licenses. In the context of the SenderID debate through the Summer 2004, Microsoft went out of its way to do the right thing.  They announced they had applied for patents that might read on the IETF SenderID anti-spam standard (which wasn't required of them), offered a royalty free license and published its text for all to see (which was pretty upfront considering they didn't have the patents awarded at the time), BUT the patent license wasn't sublicensable so certain free and open source implementations would be prevented if they were licensed under the GPL. 

They appear to have a legitimate legal concern that if software implementing the standard was licensed under the GPL, and subsequently someone used that software source code for a project unrelated to the standard and still licensed under the GPL (through the GPL's attachment), then the scope of the patent could creep and they might lose their ability to license the patent in other contexts under different (presumably royalty bearing) terms. 

My question for the patent lawyers "in the room": if there was a way to structure the royalty-free patent license to be strictly for implementing a particular standard (or group of standards), and allow it to be sublicensed in that context (so the GPL could be used), then doesn't the GPL become the guard on the patent?  The GPL requires a user to have all the rights to distribute the software.  The only patent rights granted in the sublicensable royalty-free license are to implement the standard.  Anyone trying to use that software for other purposes and distribute it would be prevented by the GPL from so doing.  Indeed, Microsoft could ask the Free Software Foundation for help enforcing the license.  Just a thought.  I'm clearly not a lawyer, so I would defer to legal minds on this one. 

The subtleties here, however, are not to be tossed aside.  The curtain has just raised on the document formats play.  While Microsoft players are still fumbling their lines in the early scenes, it's unclear the first act is over, and the rest is still being written. 

Optaros is hosting the next Boston PHP Users Group, 6 October

Update (8-Oct-2005, 22:42 PDT): It sounds like a good time was had by all.  Here's Mark Withington's write-up of the meeting, including the pointer to the slides.

Optaros, Inc. is playing host to the next Boston PHP Users Group meeting.  It will be 6 October, from 6:30-8:30 p.m.  The guest speaker is Chris Shiflett, presenting "PHP Security Audit HOWTO".

Directions and map to the Optaros U.S. Corporate Headquarters are here.  We're right around the corner from the TD Banknorth Garden and North Station, with access to the Green and Orange Lines.

Welcome!

Microsoft, Open Source and MPICH2

This is great news (eWeek article)!  The coming Windows Server 2003 Compute Cluster Edition includes the MPICH2 library from Argonne National Labs.  N.B. This isn't Microsoft playing the Shared Source pitch — it's Microsoft using open source appropriately and participating in someone else's community.  I had coffee with Kyril on a number of occasions before I left to discuss how they might go about doing this.  It's great to see they worked it out and engaged!  Congratulations!

Now run faster! :0)

Microsoft, Massachusetts and a Standards Primer

Updated (22-Sep-2005, 23:50 PDT): It's official as of yesterday.  The Enterprise Technical Reference Model V3.5 is now published.  FAQ is here.  Official comments are here.  This post has been kindly referenced from LinuxToday, NewsForge, and Bob Sutor (IBM) on his blog. I've no idea from where it's been unkindly referenced.
Updated (19-Sep-2005, 15:00 PDT): Started collecting blogs and news at the end in a further links section, starting with Nicolas Carr's post. 

The discussion is certainly heating up around the Commonwealth of Massachusetts' decision to move to the Open Document Format standard.  Simon Phipps (Sun) has an excellent blog entry on the framing that has begun.  Bob Sutor (IBM) also provides excellent insight into the vendor positioning from his point of view.  In the past week, the official vendor comments (Sun, IBM, Corel, Adobe, Microsoft) have been flowing into the Commonwealth. 

The Microsoft response is a study in exactly this sort of framing game.  While the others are a page or two supporting the decision, the Microsoft response is a fine example of norm entrepreneurial rhetoric at 14 pages.

So let's shape that frame a little. My experience here comes from more than 15 years as a developer of standards, a user of standards, and an implementer of standards, as both consumer and vendor, and across multiple products.  My viewpoint is not constrained to narrow legal concerns with how standards impact my IP portfolio, but rather the broad market economics of standardization.

First, let's start with the market.

Christensen observed that when a technology space is immature, and the technology isn't "good enough", the vendor that controls the entire delivery process (i.e. tightly integrated innovation) wins.  Once the vendor starts to over deliver on customer needs, indeed customers can't absorb (and so don't want to pay for) new innovation, then there is a call for standardization in the market place.  At this point, the component players can get involved, and tightly integrated innovation no longer wins the day. 

You might imagine that the call for standards is a market signal that the competitors love as well.  They get a wedge to drive into the incumbents business to those over-served customers. Customers believe the standards are good (often sight unseen) because there appears growing choice in the market which at the very least puts price pressure on the incumbent.  Innovating faster along the original trajectory doesn't help the incumbent because customers are looking for solutions, not even more innovation that they can't absorb and don't want to pay for.  (Remember -- innovation is a supply side action.  The demand side is about solving a problem.) 

Geoff Moore also talks about standards from a technology point of view.  He observed that when a gorilla is forming in a market there is a call for "open systems".  He's right.  But the timing is important here.  If you call for standards before the customer is over served, the incumbent still delivers a better experience and wins.  (To be clear: I like Christensen and Moore models a lot because they reflect how I've seen businesses and customers behave as both technology provider and consumer.)

This also means the vendor that is being "standardized" is going to "fight" that standards effort with a vengeance.  (More on that in a moment.)  So everyone is behaving economically rationally.  Microsoft hates what's happening and IBM, Sun, et al love it.

Let's look at standards for a moment.  Standards exist to encourage multiple implementations.  That is their economic purpose.  It is a specification of how something works at an interface such that multiple providers can provide the functionality.  I wrote the following in a soon to be published O'Reilly essay:

*****
All standards live within a context of development and use. Many formal standards are developed by national bodies or international organizations such as ISO. These standards often define procurement policy for government organizations and large enterprises alike.  Industry and trade associations develop standards relevant to their expert and specialized constituencies. In the information technology space for example, the IEEE has a standards arm, and historically CBEMA (now NCITS) and Ecma International acted as standards development organizations in the USA and Europe respectively for IT standards. Each of these three organizations was accredited within their national and regional geographies to produce standards that could be later adopted by the relevant nationally or internationally sponsored standards organization to prevent overlapping efforts, and to build on the relevant expertise within different industry groups.

Narrowing the focus even further, consortia of vendors [e.g. W3C and OASIS] often arise within a specific area of technology within an industry to develop standards and specifications. The consortia often try to build specifications more quickly to expand a particular market, feeling that the more traditional organizations are too slow to deliver standards
....

Another categorization attempts to discuss the difference between de jure standards developed in a consensus-based process and de facto standards. A more accurate statement might be de facto technology that describes a market dominant product, rather than a specification for interoperability open to all implementers.  [One can argue that Christensen's model talks about when the market pressure turns de facto technologies into de jure specifications.]

*****

Proprietary specifications of de facto technologies are NOT standards.  They don't exist to encourage multiple implementations of the technology for the consumer, but rather to encourage multiple complements to the technology, therefore increasing the value proposition of the de facto technology for the vendor. They serve a very different economic purpose.  All of Microsoft's claims about being "the standard" are the antithesis of the standardization efforts the Commonwealth want to support. 

If a company is not drowning in their own brand or innovation Kool-Aid™, then they will play the standards game well. They can't arguable stop the standards process, so it is better to get involved and manage the process. 

This is certainly what Digital Equipment Corp. did through the 1980s and into the 1990s.  The POSIX and UNIX standards efforts weren't about UNIX per se.  DEC ruled the minicomputer market.  VAX/VMS was an incredible engineering friendly platform for rich application development.  Nothing wasn't documented for the platform so as to enable one to best develop new VMS applications.  But, they were innovating faster than customers could absorb the innovation, and trying to drive customers up the product curve.  They were also getting protectionist -- you couldn't add less expensive third party disks or memory to your VAX clusters without voiding your warranty.  Customers wanted off the upgrade carousel.  Applications (and ultimately data) are what's sticky for the customer.  So if we could standardize on a portable application migration path, then even if portability wasn't perfect, it would have to be better than being locked onto the DEC platform.  (Sound familiar?)

DEC led the POSIX standards efforts.  In my opinion, they brilliantly applied Brooks' Law to the process.  If a little standardization is good, then a lot must be better!  Soon there were 350 people attending quarterly week long meetings, and a couple of dozen projects spread across a dozen working groups.  There were co-ordination committees, and liaison points to countless other standards organizations and consortia around the world.  You don't even have to be that deliberate.  The best companies at the standards game simply invite/involve people with the right attributes.  There are certainly other games to be played as well.  The POSIX efforts went on for over a decade.  Microsoft should have perhaps played the OASIS standards effort differently. 

In the end, as customers, we chose the standards path.  We were incredibly happy with the VMS platform, but not DEC's lock on us.  We chose inferior technology (UNIX products were pretty raw in the late 1980s) and rewrote new applications for it, and began migrating existing applications.  We could get UNIX systems from a wide variety of vendors, and we certainly beat DEC down in pricing discussions in the mean time.  UNIX systems matured over time to be as robust and innovative as VMS was in its day.  We were a commercial organization.  We were following the lead of the U.S. government in its procurement policy.  The customer that was front and center in the POSIX standardization efforts was the U.S. National Institute of Standards and Technology.  (This was back before the head of NIST became a presidential appointment, and the NIST agenda became political.  In those days, NIST dealt with boring tedious initiatives like how to the government should best procure technology to protect the long term investment of tax dollars.)

The cost of migration is always painful the first time.  But then the pain is eaten and you're done.  For a period of time, in Microsoft's "Get the Facts" campaign they had a collection of public case studies demonstrating that the Total Cost of Ownership was cheaper for Windows, but these case studies invariably ignored the cost of migration to Windows in the numbers (even when they mentioned them in the executive summary.)  Amazing how the migration costs got ignored when the shoe was on the other foot. 

While Microsoft would love us to believe that this is an "unproven" standard, document format standards are actually amazingly mature at this point in history.  You have to set the optic right.  We have lots of experience with document formatting standards, all the way back to SGML (somewhat before its time), to HTML for the web, to XML. Even the early SGML work was based on proprietary mark-up and type setting languages from IBM and DEC, and early UNIX systems. We even have the experience collectively in the industry to deal with the differences between page layout (PostScript) and the structure of the information.  Like networking protocols, document formats either work or they don't and it's very direct evidence.  With the first standard in place, the space will mature to accomodate new document objects, and the product space will mature as well.

So in the end, Microsoft's commentary and framing reflect their vendor-centric, market-position threatened point of view.  And Sun's and IBM's positions are certainly to be expected.  But then so is the Commonwealth's.  The Commonwealth is making a tough choice, but ultimately the right choice for its constituents.  The rest is just framing.

Additional Links:

• Nicolas Carr hits the nail on the head in this blog post (19-Sep-2005).  (Thanks to Stephen O'Grady for the pointer.)  To speak to Mr. Carr's concern about reading state documents, I would suggest that's why the Commonwealth is also supporting the ubiquitous PDF (which is an ISO standard and freely licensed and widely implemented by multiple sources).  One can use ODF as the internal working format, and PDF as the external publishing format. 
• Boston Globe article (14-Sep-2005) "Microsoft fights bid to drop Office Software". This is the article that provoked this response. 
• My original roll-up post is here.

 

Postscript: For an excellent discussion on norm entrepreneurial rhetoric, I would encourage you to read David McGowan's "SCO What: Rhetoric, Law, and the Future of F/OSS Production". While the paper is a little long and free and open source software centric, the discussion is directly relevant.  [It gets a little legalistic in the middle, but read the rest of it aloud to appreciate the use of language.]

On Why I Left Microsoft

Updated (17-Sep-2005, 11:21 PDT): Added the second postscript pointing to the Business Week article. 
Updated (14-Sep-2005, 22:36 PDT): Added the postscript at the end. 
Updated (12-Sep-2005, 18:00 PDT): Added RobMen's blog reference and corrected a grammatical ambiguity.

Eric Raymond recently posted on a recruiting attempt on him from Microsoft and towards the end of his post mentioned:

FURTHER UPDATE: I had my serious, constructive conversation with Microsoft last year, when a midlevel exec named Steven Walli took me out to dinner at OSCON 2004 and asked, in so many words, “How can we not be evil?” And I told him — open up your file formats (including Word and multimedia), support open technical standards instead of sabotaging them, license your patents under royalty-free, paperwork-free terms.

I believe Steve Walli went back to his bosses and told them that truth. He is no longer with Microsoft, and what little he’ll say about it hints that they canned him for trying to change their culture.

It was a great dinner.  Eric was there, along with Larry Augustin, Pamela Roussos and Andi Gutmans from Zend, Rob Mensching (Microsoft — runs the WiX community), and my then partner in crime Jon Rosenberg.  I believe it might have actually been Rob that asked how Microsoft could be less evil to Eric.  Those that know me well know that's not really a "me" sort of question.  I've always felt actions were important and was trying to get Microsoft engaged in the broader open source community beyond strict sharing programs under the Shared Source banner.  I still believe that Microsoft has a huge opportunity here. 

They didn't fire me for trying to change the culture.  I've met Eric and others in the free and open source software community since leaving early in December 2004, and friends have heard the anecdotal examples of things that were deeply frustrating me. I left completely of my own accord. 

Microsoft is a Very Large Company.  It is wrestling (as all large companies do) with the very processes that enabled it to succeed and grow.  It is at a point in it's life where it needs to be defined by operational excellence as much as product development.  The single scarcest resource is (as one friend pointed out five years ago) executive bandwidth.  It takes forever to get a meeting with the very execs that can open the doors for success through their sponsorship.  And once one of those meetings is scheduled, you enter data preparation and PowerPoint hell.  For me, it had become not very fun. I simply don't have the patience of people like Danese Cooper, Simon Phipps, Bill Hilf or Bob Sutor.  When interviewing with companies like Microsoft, you will often hear about the incredible reach you'll have in the world.  That is of course predicated on the ability to be heard inside the company first, and on the ability to actually ship something.

As a vice-president of R&D at Softway, I worked with a team that delivered 11 releases of software (Interix) over our four years.  As the product unit manager for the same team and technology, I left the team two years after entering Microsoft because we still hadn't shipped technology that was basically almost ready when we were acquired.  We were essentially waiting on integration with a ship vehicle.  Tightly integrated innovation isn't always the right answer. (Look at the length of time it's taken to get the new Windows command line shell out the door.)  There was a recent article in the Seattle Post-Intelligencer on Microsoft warming up to open source.  The data points were the same three small open source projects I helped launch last year. I also have a background in industry standards, and as a gross generalization, most people at Microsoft don't care about the difference between de facto technologies and industry developed standards, and the subtleties required to engage customers while confusing competitors with standards, so I was only frustrating myself in those discussions as well. 

To be clear.  I thought I was fairly treated in the acquisition (despite the fact that Softway had essentially hit the cash wall as a startup).  I was well compensated as an employee.  The benefits were great (but that may be shifting a little as they need to deal with the operational excellence mentioned above).  I had sufficient seniority, credibility and visibility to be able to request short (~10 minute) meetings with a number of senior execs on a number of occasions.  (It was larger reviews where decisions need to be made across parts of the organization that are impossible.) Three of the best managers I've ever worked for in 25 years were at Microsoft, including my immediate manager in my last assignment.  I learned an incredible amount about business, but then I had a different set of radical business lessons running my part of Softway, so part of that may simply be a pre-disposition to learning.  I haven't met anyone outright evil, (and I've been in Bill and Steve reviews on a number of occasions).  Only a couple of people were sort of broken with respect to their thinking, and they certainly weren't execs.  I still have the utmost respect for the company and its executive team.  If you looked at my annual poll results, you would see a "happy" employee. 

I just wanted to build things and have fun again.  I believe free and open source software are incredible business tools, and a lot of fun.  I left Microsoft to work for myself after a little over five years.  I've done this twice before in my career.  I left EDS in 1991 and in 1994 I left Mortice Kern Systems (MKS).  The latter lead to the founding of Softway. I'm one of those people that would rather rock the world of 40,000 customers, than touch the lives of 40 million.  I like small growing companies. 

Early this year, Optaros convinced me I should help build their company, and it's been a great experience ever since.  Life's too short.

Postscript: I was going through my back log of reading this evening and came across Hugh MacLeod's "How to be Creative" again.  I appreciate everyone on the planet that reads blogs or themself blogs has probably come across MacLeod by now, but just in case you haven't, I've included the link.  Re-reading parts of it again summarizes so much of the way I try (and sometimes even succeed) to create over the past 15 years.  (Yes, I've known Jeff Haemer that long, and he continues to push and encourage me.)  MacLeod just captures the ideas and the work so perfectly.  If you haven't discovered "How to be Creative" — please do.

P.P.S. Business Week's cover story this week is on the Microsoft exodus.  (The article is also the start of Business Week's podcasting initiative around their cover stories.)  I have a minor quote in the article.  In discussions with friends about the article, it was observed that the type of people leaving now are the sort that question everything and aren't willing to take "no" for an answer.  Essentially, these are the sort of people that made the company what it is, and exactly the sort that can't be happy in what it's become.  This doesn't come out in the article, but explains the dichotomy in the article's view points. 

Microsoft Services for UNIX Requiem

“Just say the report of my death has been grossly exaggerated.” — Mark Twain (from Bartlett's on Bartleby)

A couple of reports came out last week on the end of Microsoft's Services for UNIX product line. 

• 1 Sept., Mary Jo Foley "It's the End of the Line for Microsoft's Services for UNIX Product" on Microsoft Watch (also on eWeek). 
• 1 Sept., Ina Fried, "Microsoft Makes UNIX Changes", on CNet.

Each makes it sound like Microsoft is wandering away from the product, emphasizing that it will hit end of life support in 2011, and with a bit of a hand wave towards some integration. 

I have a rather personal stake in this one.  In the Spring of 1995, Doug Miller and I started planning a company that would become Softway Systems and deliver the Interix UNIX-to-NT application migration technology until the acquisition by Microsoft in September 1999.  We were immediately wired into the Services for UNIX space, which had traditionally been purely an interoperability product (client and server NFS, NIS, etc.).  So I went hunting around old contacts, which lead me to Rik Wright who handles product marketing for SFU.  Here is the official statement from him:

Several platform level components of Services for UNIX will be available in Windows Server 2003 R2, but there are also components of Services for UNIX, such as NFS Gateway, that are not included in Windows Server 2003 R2.  Microsoft is responding to customer requests that some of the functionality of Services for UNIX be more tightly integrated with the Windows Server operating system.

The next generations of NFS client, NFS Server, User/Name Mapping, Telnet Server & Client, Password Sync and NIS Server components of Services for UNIX are all present in the Windows Server 2003 R2 builds. In addition, for UNIX application portability, we provide the Subsystem for UNIX-based applications which allows re-compiling of UNIX-based applications on Windows, including 64-bit support, database connectivity libraries and mixed-mode processing that is not available in SFU

The Subsystem for UNIX-based applications offers the same functionality as the Interix System in addition to 64-bit support and database connectivity enhancements. Microsoft has continued developing the Interix subsystem since we acquired it from Softway Systems, but this release is based on a completely new architecture that allows for considerable new functionality such as mixed-mode processing. The Subsystem for UNIX-based applications is backwards compatible with some Interix applications but may need recompiling of source for others.

Q. How will current SFU 3.5 customers adopt this new SFU technology?
A. Customers will have to upgrade to Windows Server 2003 R2 to take advantage of new functionality.

Q. Is the SFU functionality available in all editions of Windows Server 2003 R2?
A. Yes. This functionality is available in all editions.

Q. Will there be SFU version 4?
A. No. There are no plans for future out-of-band releases of Services for UNIX. Services for UNIX 3.5 will be supported on Windows Server 2003, SP1, Windows 2000 and Windows XP until 2011 with extended support offered until 2014.

So what's happening is that the primary parts of the product that would have been the next version are being included in the next release of the OS.   When I asked Rik where the (Interix) utilities and SDK would be available, he pointed me to here, which is similar to the free download site for SFU 3.5.

One day I'll blog the history of Softway and Interix.  For now, I'm simply happy to report that "it's not dead yet."

MORTICIAN: Bring out your dead!
      Bring out your dead!
      [clang] Bring out your dead!
      [clang] Bring out your dead!
      [clang] Bring out your dead!
      [clang] Bring out your dead!
CUSTOMER: Here's one -- nine pence.
DEAD PERSON: I'm not dead!
MORTICIAN: What?
CUSTOMER: Nothing -- here's your nine pence.
DEAD PERSON: I'm not dead!
MORTICIAN: Here -- he says he's not dead!
CUSTOMER: Yes, he is.
DEAD PERSON: I'm not!
MORTICIAN: He isn't.
CUSTOMER: Well, he will be soon, he's very ill.
DEAD PERSON: I'm getting better!
...
(Courtesy of http://www.rit.edu/~smo4215/monty.htm)

Innovation and Customers, Patents and IP Strategy

I recently posted on Massachusetts's declaration to move to open document formats for government documents. Matt Asay raises several issues (innovation and customers, my possible confusion of patents and innovation, me being anti-Microsoft).  One I've corrected inline, by bringing it here because he was correct that it really didn't fit the other post.  The other two I've brought here to hopefully clarify.

Matt calls me out on the fact that I said:
Customers don't buy innovation.  (And customers couldn't care less about nor do they buy patents.)  They buy solutions to problems.

He says (by calling out Jason Matusow's discussion on his blog):
... That Microsoft is an innovator (sometimes measured in patents and copyright), and customers should buy from it because it will consistently deliver cool, useful (i.e., innovative) new things worth buying.

Here's where I realize Matt and I are likely agreeing, but confused in each other's terminology.  He is equating innovative with useful.  I absolutely think consumers buy things because they're cool and useful.  That's the demand side act.  Innovation (to me) is the act of design and creation.  The dictionary defines it as a noun meaning "the act of introducing something new", or "something newly introduced."  It's a supply side act.  And it is different from the buyer's motivation. 

As Matt later points out in a subsequent post:
It's not that we wake up one morning and say, "My, I sure need some innovation today! Where can I buy some?" Rather, we buy products that catch our eye, that deliver results, that give us a performance or feature edge. All of this stems from innovation.

Exactly so. 

But I am not confusing innovation and patents.  (I think he's merely goading me in that statement to produce the following bit).  Intellectual property (IP) is a collection of legal tools used to protect assets (i.e. innovation), consisting of copyright, patent, trademark, and trade secret law. You need to create first (i.e. innovate in Matt's terms) before you patent. 

Patents are government-granted time-limited mini-monopolies to enable the creator to bring their work to market protected in such a way that they recover their investment costs, but published in such a way that others will be able to build eventually upon the work. But patents cost money to obtain and defend and maintain.  They are merely tickets to a negotiation as I've observed. Useful?  Depends.  Patenting is merely one choice in relation to how you use the asset created.   

From a business perspective, I would rather have a growing bed of customers, and out run and out deliver the competition, possibly even publishing like crazy to prevent those competitors from patenting in the space.  Takes less time.  Costs less money.  And if I'm a small company, having a little stack of a few patents, even brilliant essential patents, won't help me going up against a cross-license negotiation with any of the big guns (IBM, Microsoft, Intel, etc.).  In software, the speed and cost of delivery of innovation makes patenting a possibly suboptimal use of my time and money.  Indeed, I could do everything "right", researching patents, possibly applying for my own, and with the 18-24 month gap between application and award for a patent, still discover I'm infringing months after I've shipped my product to market.  I'm not the only one thinking this way.  Here's what Joi Ito had to say recently. 

Lastly, I'm not an ardent anti-Microsoft crusader.  (Yes, I was on an airplane at the time he wrote that bit.)  I spent the first decade of my career from '80 through '91 on the customer side of the fence in large IT organizations in retail and manufacturing.  I have always been unsympathetic towards any vendor that forgets that it's the customer's money, and they have to earn it.  The vendor has to care about helping me solve my problem.  Vendors aren't universally "good" or "bad" at this.  Microsoft ends up in my sights a little frequently only because of a certain depth of experience inside the walls. 

Pax.

Massachusetts, Microsoft, and Open Document Format Standards

Updated (19-Sep-2005, 15:00 PDT): Moved the discussion to a new blog entry here.  This first entry was very much a roll-up and initial thoughts on the announcement.  Now we're moving into "Phase II" and the framing debates.  I felt it needed additional context in a new entry. 
Updated (13-Sep-2005, 16:17 PDT): Added more blog and press entries to the end.
Updated (12-Sep-2005, 00:25 PDT): Added a number of other blog and press references. Cleaned up an opinion that Matt Asay pointed out was confusing. I also (hopefully) clarify that opinion here.

A lot has been reported and blogged about the recent announcement from the Commonwealth of Massachusetts concerning a move towards the recently ratified OASIS OpenDocument format. 

Essentially, the Commonwealth published their desire to move to freely available standards and specifications, choose the standards they want to use, and have requested industry comments back.  As they chose OpenDocument and Adobe's PDF, everyone is looking at this as a slap in the face to Microsoft.

There is lots of debate and commentary.  Microsoft has said it won't support OpenDocument in the next release of Microsoft Office.  They've tried to point out that OpenDocument is inferior as a format, that the Microsoft Office XML are freely licenseable, and that the next release is about compatibility with older Office formats. 

Stephen O'Grady (RedMonk) has an excellent commentary based on an interview covering the ground with Allan Yates of Microsoft.  Stephen also responds to Matt Asay's commentary.  I have to agree with Stephen on this one.  David Wheeler also has excellent commentary here. 

Microsoft's commentary is fairly predictable.  Mike Champion blog debates with Stephen here, and Brian Jones has comments on Aug 31 and September 5.  Stephen O'Grady's responses are all great. 

Brian Jones expresses surprise and confusion based on the royalty free patent license Microsoft offers on their Office XML schema.  Of course, while the patent license for the Microsoft Office XML formats is royalty free, the license is not sublicensable (preventing a free software GPL licensed implementation).  (The Groklaw commentary gets into this issue as well as David Wheeler's commentary.)

Observations:

• I first commented in May of this year that the threat to Microsoft's hegemony wasn't the Linux desktop but rather OpenOffice on Windows, that Microsoft would try to battle it by claiming superior technology and innovation, and the role the OASIS standard would play.  Clearly the Commonwealth of Massachusetts is moving in this direction, but so it appears is the City of Munich.  While they still try to struggle with their Linux desktop decision, "Some departments will start with OpenOffice on Windows, ...."  So it begins.
• Microsoft appears to remain confused about standards and patents.  Standards exist by definition to encourage multiple implementations of a technology.  This is regardless of who defines them: whether government sponsored and recognized organizations, industry associations, or even more narrowly focused technology consortia.  Patents exist to protect a single implementation.  By definition standards and patents exist to serve different functions in the economic spectrum. A patent is a tax on the standard.  No participant wants such a tax, or perhaps a better way to say this is that any participant that has a patent that reads on a standard needs to determine whether or not the tax will slow the adoption of the standard, and whether or not the economic goals served by the standard are more valuable to the patent holder. Yes I appreciate the Microsoft patent license is royalty free, but it is the Microsoft point of view that these assets still need to be strictly protected that is the problem. 
• The patent license is absolutely designed to prevent GPL implementations.  Before attributing malice here, consider the following.  If a patent is allowed to be sublicensed (enabling a GPL implementation), then when the software that implements the patent is used downstream for a different purpose, and the GPL attaches to that software (and so on), then the scope of the patent can "creep", and the patent holder can loose control of the patent and the ability to license it differently (possibly for a royalty) or prevent others using the invention in different circumstances where they might want or need to be less generous with their protected asset.  If you were a very conservative lawyer (and working for a large legal target like Microsoft appears to engender that in their legal team), then this loss of patent control is a scary thing.  I have no idea if lawyers can develop a license that would enable GPL implementations but scope them to strictly the royalty free use desired.  (IANAL.)  The GPL would actually support the downstream scoping if I am guessing correctly.  You see, the GPL says you need all the rights to distribute the software, or cease distribution.  If the patent rights you hold are strictly to implement the standard, then you can implement the standard, but if you try to use the GPL licensed software for any other purpose, the GPL prevents it. 
• I find it ironic that when Microsoft has been confronted in the past with governments trying to develop open source software preference policies, they (rightly in my opinion) argue that the government shouldn't care how the software was developed and licensed, but rather focus procurement policy on software acquisition against standards.  Now that they have a government behaving exactly as they have requested, they are claiming that governments should focus procurement policy only on standards that Microsoft already supports, or de facto technologies that they sell, i.e. the status quo. 
• Microsoft is still confused about why customers buy things. Customers don't buy innovation.  They buy solutions to problems.  The government has a problem, and determined a solution, and Microsoft could support that solution, but would rather try to tell the customer that they don't understand their own problem space, and should keep giving Microsoft money for innovations, regardless of the problems the customer wants to solve.  It's the "we know best what's right for you" defense, and Microsoft still doesn't appreciate how arrogant it sounds. 
• I pretended to be Novell the other day.  I'll pretend to be Microsoft now.  If I was Microsoft, I would publicly state that we had reconsidered the customer's position (after meeting with them), and that while we have confidence in the integrated innovation (blah blah blah ... fill in marketspeak here about great new Office features... blah blah blah), they will support ODF.  They may not be able to add it in the current time table for the next release of Office, and delaying the release for the feature would be unfriendly to their shareholders.  But it could certainly be made available shortly after in a service pack.  And then deliver it.  If Microsoft is genuinely delivering huge value for other features that solve problems, they will still out sell all the competition.  They'll appear responsive and responsible.  And the discussion will move on.

I commend the Commonwealth on its move.  It has some short term pain, but should show a lot of benefits in the long term.  This is how I would want my government to spend my tax dollars — take the long view, and do the hard work to serve my needs best. 

The reporting trail and additional blogs:

• 1 Sept., CNet's Martin LaMonica's "Massachusetts to adopt open desktop" on ZDnet.  Covers the initial announcement from the Commonwealth.
• 2 Sept., Paula Rooney "Microsoft Blasts Massachusetts' XML Policy" on Information Week.  The first reporting back from the Microsoft point-of-view.
• 2 Sept., Boston Globe coverage "State May Drop Office Software".  The local coverage. 
• 5 Sept., Tom Espiner, "Legal Worries led Massachusetts to open standards" on ZDnet.  The Commonwealth responds back to the Microsoft news cycle.
• 8 Sept., David Coursey "Massachusetts' Move to Open Format is Closed-Minded" on eWeek.  A few things he gets very incorrect.  Some good opinions however when he points out both that Microsoft should support ODF as well as open their own formats further.
• 8 Sept., Simon Phipps (Sun) blog commentary on Coursey. Groklaw added some further comments as well.
• 8 Sept., Steven J. Vaughan-Nicols, "Microsoft's Standards Are No Standard at All", on eWeek.  Debates his co-worker Coursey's comments. 
• 9 Sept., Tim Bray (Sun) blog publishes Scott McNeally's letter to Peter Quinn.
• 10 Sept., Tim Bray (Sun) blog commentary "Massachusetts Back-Room" Groklaw additions here too.
• 10 Sept., More blog commentary from Microsoft's Mike Champion on the Microsoft XML blog.  To quote Mr. Phipps (from whence I found the link): "My, but he's prolific and subtle."
• 12 Sept., Excellent blog follow-up from Sun's Mr. Phipps on the framing game that's being played out here. 
• 12 Sept., Jim Wagner's "Open Season in Massachusetts" on InternetNews.
• Just catching up with blog commentary from Bob Sutor (IBM, V.P. Standards and Open Source) who is obviously supportive:
• 13-Sep-2005, Myths of Technical Neutrality, excellent bit with a peek at how vendors frame things. Nice bookend for Simon Phipps' bit on framing. 
• 8-Sep-2005, Official IBM response to the Massachusetts Enterprise Technical Reference Model v.3.5 - Public Review Draft
• 6-Sep-2005, Massachusetts Entry of the Day discussing David Berlind's ZDnet article.
• 1-Sep-2005, More Links on the Decision.  Covers off a number of links I haven't yet linked.