Once More unto the Breach

Microsoft and the Smiley Patent

A fine write-up from Groklaw as always.  (Includes the patent link.)
Unfortunately, there's prior art.  Or maybe this is where trademark law and patent law collide?!?! Maybe we need the Supreme Court to decide who and what is right. 

Actually, this is where Microsoft's head of intellectual property strategy needs to spank the lawyers for wasting his budget and review the internal process as to when they get called.  Really.  How much shareholder money was spent on this application and to what end?

"Move along.  It's just an accident.  Nothing to see here folks.  Move along."

Image supplied courtesy of FreeFoto.com

Irony, OpenOffice, Open Source, Shared Source, and Microsoft Office (and Standards!)

Update (19-Sep-2005): I didn't know how prescient I might be at the time.  The Commonwealth of Massachusetts has made a decision to move to the Open Document Format.  Coverage begins here.
Update (25-May-2005): The podcast for this post is up here.
Irony is a wonderful thing.  As my OED would define it:

irony n. E16. [L ironia, Gk eironeia, simulated ignorance, ...] ... 3. fig. Discrepency between the expected and the actual state of affairs; a contradictory or ill-timed outcome of events as if in mockery of the fitness of things. ...

Slashdot recently carried the [resurrected] story about the head of Microsoft in the Ukraine being forced to use OpenOffice on Linux to display their Microsoft PowerPoint™ presentation about Shared Source.  Sort of takes your breath away, doesn't it.   As was pointed out here this is actually an old story (October 2004), however it brings a number of interesting things to mind.

There's lots of debate and opinion on whether or not a Linux desktop is ready for prime time deployment.  A year or so ago things looked like they might begin as IBM started trying the subtle and not so subtle game of encouraging enterprises to review their desktops between task workers (could go to a "simpler" desktop) and knowledge workers.  That didn't really seem to catch on and sweep 10%-15% of the desktops away to Linux, despite backing analyst reports. 

I don't believe however that it's a Linux desktop that will be the truly frightening thing for the Microsoft hegemony.  It will be OpenOffice on Windows XP that will cause a revenue slide, a few quarter on quarter losses and the shareholders to react bluntly. 

Firefox has given Windows XP desktop users a taste of open source.  The average consumer isn't downloading source code and building it from scratch — they're merely downloading the binaries and discovering it's a more than good enough user experience and it isn't as malware prone.  (Once I started running Firefox, Adaware SE stopped finding things on my computer.) 

OpenOffice on Windows XP becomes an interesting next step.  r0ml (who also works at Optaros) talked about maintaining a software portfolio similar to a financial portfolio in his Open Source Business Conference talk on "The Paradox of Choice" in April 2005.  The idea is that you might want to spread your software investment across a number of applications that perform the same function to lower risk. 

With no licensing fee, it becomes a very inexpensive experiment to load OpenOffice on a large class of workstations in the average enterprise that already pays for Microsoft Office through its Enterprise Agreement.  OpenOffice reads Microsoft Office documents in a very direct manner.  As not-a-power user, but a regular report and essay writer, I've certainly had no problems with Microsoft Word or PowerPoint documents since switching 8 months ago to OpenOffice.  The user interface is familiar enough. It maintains the features I've always used in writing (e.g. footnotes, comment tracking) and there's only been once that I really couldn't figure out how to do something in OpenOffice in a text document.  I ended up doing what I wanted in Microsoft Word, pulling the document into OpenOffice and discovering what it looked like there, and discovered I was using the wrong terminology in OpenOffice help searchs to find what I wanted to do.  I do all my work in OpenOffice now using OpenOffice document formats, and when someone tells me they require a Microsoft formated document, I simply save the document that way for them.  The ability to generate PDF for distribution in OpenOffice is also a god send. 

As a legal user of Microsoft Office, it was easy to try OpenOffice.  All of the PCs at my house have legal copies, as do my parents and inlaws.  I now live in OpenOffice all the time.  When I was a Microsoft employee, I had access to the Microsoft Company Store and its steep (order of magnitude) discounts on Microsoft software.  I joined the Microsoft Alumni on the way out of the company primarily to maintain access to the Company Store, but I must admit, the membership is looking less attractive all the time if all I want is a couple of XBox games a year. 

I can't imagine it would be too difficult for an enterprise to include a small web app on the desktop to collect reports of documents and features that didn't convert cleanly into OpenOffice as part of the experiment to see what features really need to be considered in the Microsoft documents, and how many users actually depend upon those features or macros.  Once those numbers become apparent, the enterprise procurement team can then have a different discussion with the Microsoft account exec when they arrive to negotiate the next three year enterprise agreement.  Think about it: I need an enterprise agreement for 50,000 copies of Windows XP Pro over the next 3 years, but only 25,000 copies of Microsoft Office — priced accordingly.  This support "futures" idea also comes from r0ml's presentation.  There is actually an opportunity for Microsoft here — but who wants to bet they don't see it.  It's simply not their modus operendi.

Lastly, let's talk about innovation.  Microsoft will hammer away at the message around innovation in Microsoft Office and all the incredible work that's coming in the next release.  For the moment, let's give them the benefit of the doubt, and assume there really is cool innovation coming in the next release.  (I worked there long enough to know how many smart people really are working incredibly hard to deliver very cool technology in the box.) 

Sadly, it's NOT about the innovation.  Clayton Christensen uses an example in some of his public talks about the new new disk drive technology and innovation.  The newest hard drives are incredibly small, and pack fantastic densities of information.  The engineering teams delivering them are incredibly innovative, squeezing cooler technology on cooler technology to get the drives even smaller and faster, etc.  And in the market, all this innovation is worth about $1 a gigabyte.  It doesn't matter how smart those teams are, how hard they worked, how many marriages were destroyed getting to the product release finish line.  It's still worth about $1 a gigabyte. 

As Christensen points out, it is about delivering a solution to a problem the customer wants solved and is willing to pay money to solve.  In the Innovator's Dilemma, he talks about over delivering on functionality, but in the Innovator's Solution he gets into what actually happens in the market at that point.  When an encumbent starts over delivering, and customers can't absorb the new innovation fast enough, (and therefore are unwilling to pay for it) a call for standardization comes from the marketplace. 

Let's think about that in light of the fact that Microsoft Office has been over delivering since about Office 2000.  (How fast did you figure out how to turn OFF smart tags?)  And now the standard has arrived.  You have to admire Sun on this one.  Small nudges in interesting places like hiring Tim Bray and encouraging the EU around data formats and things quietly got done.  It must have been horrible to be the Microsoft point person on that standard.  On the one hand, you don't WANT the OpenOffice format as the standard (because you'll have to spend time and money to implement it eventually to sell certain government contracts).  On the other hand you don't really want to give up your own formats because it's been such a great lock for so long, until you overdelivered.

Irony, again.

Well life has a funny way of sneaking up on you
When you think everything's okay and everything's going right
And life has a funny way of helping you out when
You think everything's gone wrong and everything blows up
In your face
Ironic, Alanis Morisette, 1995

Or Maybe Microsoft Could Join the Community?

Update (22-May-2005): You can find a podcast of this entry here.
There's an eWeek article entitled "Microsoft Reachs Out to Open-Source Community". In it Brad Smith (Microsoft General Counsel) makes the following fabulous statement:

"We're going to have to figure out how we can bring the various parts of our industry closer together. Not necessarily in the sense of changing the way software is developed, but building bridges so that we all have the ability to collaborate with each other. And that will mean we will need some new rotations, I think, in how we work together, in how we license, in how we share technology or intellectual property rights with each other."

Pardon? The rest of us already are. You can too. Join business relevant open source communities. Start more of your own. The free and open source software communities have been figuring this out for a while now. So have your competitors at Sun, International Business Machines, Oracle, Novell, and SAP.

We could sit down and have yet another circular dialogue on patents. You'll point out intellectual property is important. (It is.) Various capital-C community spokespeople can point out that patents can get in the way of open source software projects. (They can.) And around it will go.

Or, you could DO something. It's not like there aren't enough people inside Microsoft that don't already know what to do.

Matt Asay asks that we give Microsoft the benefit of the doubt when they say they want to build bridges. The way one builds bridges in the community is to join the community. There are no barriers to entry. The open source projects aren't gated. Participate by a community's rules. Earn the respect of that community. Earn your reputation. You can even change the reputation you may already have. Your competitors did it. And they did so for very competitive reasons. So here are some fantasy projects to consider:

1. Join the Apache community.  Ensure Apache runs brilliantly on Windows. Improve the management of Apache in a Windows managed world. Make Windows the best managed environment for running Apache. And MySQL. And sendmail.
   
2. Join the Mono community. Ensure the Mono CLR runs better on UNIX to drive adoption of C#/CLR as a cross platform environment. Then deliver a better implementation of the ECMA specs on Windows so the richest web service delivery platform could be Windows. Contribute the Base Class Library code from Rotor directly to the Mono community as a real olive branch. Contribute the test harnesses from Rotor. Imagine the consternation on Novell's, Sun's, and IBM's faces when you do this.
3. Join the Eclipse community. Find out WHY so many people in the Eclipse world are working on Windows, and find out where the line between Visual Studio and Eclipse should be. By all means keep certain code clear of Eclipse (like performance enhanced compilers), but how many colour coded editors does the industry need?

Free and open source collaborative development communities represent what might be the best answer we've seen to date in our industry for software re-use. To buy versus build you could add "borrow" and "share" to your business tactics for product development and driving the business.  Source code is a valuable intellectual asset, but your software business — what you represent to your customers — is so much more than the source code. Come out and join the community.

Update: 5 May, 2005:  I found Dori's post via Scoble.  In it she makes the following point: 
"The fact of this business is that disruptive technologies happen, whether you like them to or not. If you create them yourself, you've got some control over how/when it happens. If you refuse to create them yourself, you have no one to blame but yourself when you become obsolete. It's the difference between good products and great products.

So Microsoft — go break something. Then you'll be interesting."

Dori's tackling the issue from a different perspective, but the point is same.  I've argued before that Microsoft has huge opportunities around open source as a disruptive business model.  This is conceivably what IBM is doing around Linux, smoothing the slope of their technology adoption life-cycle for AIX.

So Microsoft — go break something.  Join the community.

OSBC Wrap-up

The second Open Source Business Conference took place last week.  First,  an apology.  I really had every intention of blogging live as I did at the OSDL Enterprise Linux Summit in January and the conference simply got ahead of me and then I was in catch-up mode.  So instead I've pulled together a summary of all the brilliant links with some commentary along the way.  If you missed the conference this will give you the flavour of it all without the bad hotel coffee at break time. 

The conference kicked off with an opening keynote from Sun's Jonathan Schwartz.  His blog entry covers his keynote on the Participation Age.  Overall a mostly entertaining keynote, (I've not seen him speak before) but you've probably also seen it reported as Schwartz "attacking the GPL."  The Groklaw coverage is here although it's a bit extreme in lambasting Jonathan. Of course he is essentially being a senior vendor executive delivering the company message so one has to take the message liberally salted.

Here's the ZDNet coverage of Jonathon's keynote as well.  As reported, he also did the tired dance around not opening the source of Java because it might diverge from the "standard".  I had the pleasure of having that same discussion in a panel at OSBC last year with SunSoft CTO John Fowler.  At the time when Mr. Fowler tried that line on the audience I pointed out:

• Apache hasn't diverged off the HTTP spec since it was created.
• sendmail hasn't diverged off the SMTP spec since the software implemented it.
• The flip side IS true: at least one key OEM vendor in the mid-nineties shipped a C compiler that broke conformance with the ISO/ANSI C specification and didn't discover it until post-release.  They were very quiet about it until the next release cycle when they could re-align with the standard. 

Sorry Sun, you'll have to do better than that excuse.  And since Java isn't a de jure standard and you control the community process and the branding program, I still can't see how you'll loose control of the name and the spec and the implementation, etc. etc.

Jonathan's discussions around other topics were insightful, but you certainly had the feeling throughout that you were only seeing the large-vendor-approved-message without some of the context or concerns.  It would have been nice at something like the Open Source Business Conference to see the complete discussion that went on inside Sun. A little bit of opening the kimono would have gone a long way. 

Jonathan was followed by Larry Augustin in his new role as CEO at Medsphere.  Here's a good blog summary of his presentation.  The most fun was when he pointed out that if you take a traditional software company's SEC filing, and reduce R&D expense, dramatically drop sales and marketing costs (because customer's self select when they can try for free), and drop licensing revenues, you can still apply the typical MBA ratios and the numbers don't look bad. 

Day one was also the day we got another r0ml presentation.  (Please remember I have the extreme pleasure of working with r0ml at Optaros.)  As always, he forced us to think about things differently with a discussion around the Paradox of Choice, starting with some thinking from the book of the same title.  The finest bit of brain manipulation he did was to begin the conversation around organizing your IT software portfolio like a financial portfolio (i.e. diversity is good), which means you can actually apply some risk and option analysis to it.  Then start thinking about your enterprise support agreements from your large vendors and bond laddering to manage the future risk.  There could be a whole new set of financial tools for the corp procurement staff to use in their next discussions with vendors.  r0ml's slides are here (938.8K). 

Another classic keynote was Geoff Moore of Crossing the Chasm fame.  Ross Mayfield took exceptional notes and has posted them on his blog.  They capture the presentation perfectly.  One fun thing done at the start of the keynote (with a hat tip to James Surowiecki's The Wisdom of Crowds) was Mr. Moore put several OSS projects up on his modified bell curve representing the tech adoption life cycle and asked for the audience to confirm where the projects sit today.  Read Ross's blog to see the results. 

Ross Mayfield's blog has a couple of different OSBC entries covering the areas in which he was interested or directly involved.  You'll find some great reads:

• Meet the Community at OSBC
• Open Source Innovation

Larry Lessig gave a keynote again this year.  This is the fourth time I've seen him speak.  Every time is a genuine pleasure.  He covered familiar ground on the coming battle where large vendors will attempt to use patents and a patent system that's under siege to control innovation and creativity to protect their businesses.  In the questions at the end, when asked what we can do about it all, he reminded us (again) to consider how much we give to the cable company on a monthly basis versus funding to non-profits like the EFF that are fighting the battle for us in the courts. 

Mårten Mickos (MySQL) gave a keynote during the second afternoon, and it was as thought provoking and entertaining as always.  He remains one of the few CEOs that seems to give a real presentation on his business (as he did at LinuxWorld) and how they think about open source at MySQL.  You get the feeling he really is presenting the thinking and not corporate speak.  The topic at hand was Lagom, the Swedish concept of finding balance — neither doing too much or too little of something.  The MySQL Users Conference is coming up next week and he'll be presenting there as well.

I caught Jason Matusow's Shared Source talk.  Jason's talk was (another) very carefully positioned talk from a Microsoft perspective, essentially presenting material you can read in his blog on defining "open", yet another positioning of most-customers-don't-want-source must mean that source access isn't actually important, and sometimes Shared Source might mean Open Source.  Don't get me wrong  I worked with Jason at Microsoft and he's a mensch, a consummate professional, an entertaining presenter, and very good at what he does.  He even presented a little bit of what Microsoft learned from the WiX project which is a year old now.  But it would be so nice if Microsoft's presenters actually presented all the learning and all the thinking (even the bad), and quit the shades of grey and the paid "studies".  Really, it's not that scary.

The idea that large companies can present a real and balanced discussion without messaging to us still seems lost on them.  Why do the big vendors continue to think this is appropriate?  I missed the opening keynotes the second morning.   (I attended the OSI board meeting and met the new board).  There was some infomercial work apparently going on in the keynotes based on the hallway comments later.   Large vendors still don't get it.  Even when they blog, an audience can still smell messaging.  Give me company CEOs with real discussions like Augustin and Mickos every time, even if they don't have time to blog. 

Here are some excellent wrap up links:

• Matt Asay (conference creator and organizer) summarized his experiences here.
• Kevin Schockey offers up mostly real-time coverage on the O'Reilly Network with a Kick-off, some SpikeSource coverage, and some Groundwork coverage, and Day 1 and Day 2 summaries.
• Steve Mallet's wrap on OSDir.com.
  
• The Flikr file is growing and there's the promise of audio to come at IT Conversations.

I didn't follow the Legal or Venture Capital tracks.  If someone has good pointers or summaries, please email them to me and I'll update this entry.

Updated (2005-04-15, 15:39 PDT): Included an updated link to r0ml's slides. 

Perspectives on Microsoft's Shared Source Initiative

I wrote this O'Reilly Network essay on perspectives on Microsoft's Shared Source world a couple of weeks ago based on a discussion with Nat Torkington.  Since then Jason Matusow (Microsoft, Director of Shared Source) has blogged his view on his Shared Source world, and Stephen O'Grady (Red Monk) has blogged a different perspective. 

An Interesting Juxtaposition of Patents and Microsoft

Two interesting reports appeared in the past few days.  First there's a good article on Microsoft encouraging patent reform.  As a company spending outrageous amounts of money on lawyers filing patents, it makes sense to reform the system.  The top companies applying for patents in our industry tend to top the 2000-3000 applications mark.  At an estimate of $12,000-$15,000 per patent to the lawyers for writing clever applications, that means these companies are each spending on the order of US$40M/year to add to the patent portfolio.  Sort of takes your breath away. 

Then they get into the other side of the coin so to speak with their intellectual asset strategy, and how they use intellectual property to best advantage.  As reported in the article, Microsoft is in a fairly constant state of patent litigation, much of it inbound.  Deep pockets makes one a good target. 

Among the patent changes Microsoft proposed directly quoted from the article:

• Halt the diversion of fees earmarked for the U.S. Patent and Trademark Office (PTO) to other government uses.
• Allow third parties to submit "prior art" information to patent examiners during the patent process itself, rather than only after a patent has been issued.
• Allow third parties to challenges patents "administratively," rather than just through litigation in order to help weed out questionable patents, as currently is permitted in Europe.
• Create a special court that would consolidate and hear all patent cases at the federal district level in order to improve consistency and predictability of patent litigation.
• Reform the standard used to measure "willful infringement," via which claimants are currently allowed to collect treble damages.
• Increase "harmonization" and collaboration across international boundaries.
• Move to a "first-to-file" system, rather a "first-to-invent one," thus following the patent procedures to which most other countries adhere.

While the list of proposed changes is pretty good, they tend to focus on getting good patents out of the system.  It's unclear that they address the problems around the length of time to get a patent out of the system, which means they will still be caught so to speak shipping products not knowing whether they're infringing or not.  So they may still be getting sued as much.  While such litigation may close more quickly under a reformed system, there is still that pesky need for lawyers.

The other report of note in the space is Stephen O'Grady's blog discussion of Microsoft and patents around the Mono project.  He points out that it is conventional wisdom that is getting in Microsoft's way with respect to things they could do with patents to support mono. This would encourage C# to be seen as a cross-platform environment as the language continues to be hammered by the likes of java and cross-platform open source environments.  Indeed, why can't Microsoft make the same sort of strategic intellectual property play that IBM has recently.  There are even more creative intellectual asset plays Microsoft could make in this space.  Unfortunately, they are bound by the very practices that made them successful.  And this might be why they see patent reform as more better patents (not necessarilly) faster as the way forward, rather than getting truly creative in their intellectual asset strategy. 

 

Microsoft Trying to Release More Source Code

Excellent news as always.  The opportunity for Microsoft is still huge in this space.  They have the opportunity to lead in the community (and I don't mean lead the community) if only they would take it.  This is actual product code, so it's stickier to release into community than non-product code like WiX, WTL, and FlexWiki.  Go Shawn.  Go Jason.

Small editorial note on the article:  Microsoft took the C# and CLI specifications to ECMA (and the ECMA technical committee subsequently took the finished ECMA standards to ISO).  Rotor (aka the Shared Source CLI) was a working implementation of the ECMA standards on XP, FreeBSD, and Mac OS X. 

Links:

• "Microsoft to Release More Source Code?"
• Microsoft and community development
• Rotor (a shared source project)
• The ECMA specifications for C# (ECMA 334) and the CLI (ECMA 335) (freely available)