Home > Archive >  2009 >  September >  18

Google, open communities, patents

Friday, September 18, 2009 by Dave Winer.

When Google patents ideas that have been openly discussed and implemented in the RSS community, and then doesn't understand why this raises objections -- well, I'd say we have had a failure to communicate. At least.  

I'm thinking about the patent that Google was granted on September 15 that covers reading lists for feeds. They say it covers other things, and that's probably true, and if so -- if they had to patent something they should have stuck to the new stuff. And I think there's a good argument that they should follow the conventions of the community and not patent their innovations, rather contribute them in the same fashion that others had contributed their good ideas.  

It's as if Google ran Linux servers and used the fact in their marketing (no problem). Then five years later it turns out they had forked the Linux code base (which is permitted) and was marketing it under their own brand name (okay) and had not checked their improvements back into the community (there's the problem). This would be a violation of the norms of the community. True, it would also be a violation of the open source license, and perhaps we should have one in the RSS community. But in both cases these licenses would be hard or impossible to enforce. I don't believe the GPL has ever been tested in court. And in the case of open formats and protocols, who knows if such restrictions would even be legal. But clearly the "norms" part of the argument is stronger than the legal one. If Google wants to be part of the RSS community, it should be respectful of it. That means not using their size and legal resources to take what's good about our work, foreclose it, sell it as their own, and control others' use of it (which is the point of a patent). 

All of this adds up to nothing if Google's lawyers are like lawyers everywhere, and they probably are. And if all their talk about being supportive of open source is just talk. But, on the chance that they're serious about wanting to work with and support open communities of developers, there are pragmatic reasons why they should be respectful and careful. And they have not been either. 

This isn't all about Google... 

The rest of us could have taken steps to prevent this problem. And we still can head off similar problems in the future.  

1. There is an idea out their called peer-to-patent. The USPTO ran a pilot project that just ended. Seems like a good idea. Basically the patent applications are published before they are granted, giving experts a chance to comment on the novelty of the work, thus providing guidance to the examiner.  

2. I've long argued that there must be a parallel patent system, a good one, that works more or less the same way as the USPTO's process with one important difference. At the end of the process the public owns the invention. The creator is given full credit for his or her work, which often is all they want. But a careful document is generated that creates a hole within which there will never be patents. Every one of these unpatents acts to combat the bad kind of patents. (This idea has already been widely discussed.) 

3. And perhaps there should be cash awards for those unpatents, to create commercial incentives to produce novel ideas. That would go a long ways to counter the (imho invalid) argument that patents spawn innovation. I think quite the opposite. Most patents in my area are like Google's reading list patent. Filed after-the-fact by a big company, claiming the ideas of engineers working outside of large companies.