Philosophies On The Commercialization Of Intellectual Property
Updated: May 3, 2021
We’ve all had moments of inspiration. Sometimes those are about an evolution in technology not previously considered. Other times our evolution involves what we think is the next step in the journey of a horizontal or vertical application of technology along the path of technological determinism.
We want to see our idea taken to market and used to improve lives, either by increasing productivity, providing deeper temerity, or improving the quality of lives. That idea in our head spills out in the form of progress in our field, and there are countless tactical ways to implement the strategy. Some provide personal gain. Others benefit our organization. Others can lift an entire industry.
Only history is the arbiter of how successful the idea and implementation is. Some evolutions are basically no brainers. They were going to happen whether it was us or someone else. Others are new ideas that only a deep understanding of an industry can bring. Some ideas can be implemented in a vacuum, while others need broader support.
The modern options began for commercializing our ideas began to crystalize in the post-World War II technology boom in a military-university-industrial complex throughout Western powers. Here, we saw universities like MIT develop various aspects of computing like core memory, modern CPU architectures, and well, general purpose computers. But that was part of the war effort when every scientist was doing their part. After the war, each university brought in law firms to try to figure out where they should be getting royalties.
Today, there are about as many options to license, distribute, and/or commercialize our works. Philosophically, some believe all software should be free. Others choose to patent everything they create. Others choose to build coalitions between market leaders. We need each and every iteration between these as a society, as each fuels the other. Let’s look at the main options and when each might be appropriate.
George Graham perfected the concept of a cylinder escapement in clockworks to bring about the modern watch in the 1720s, changing navigation and timekeeping forever. If he had patented his (and Thomas Tompion’s) escapement, the history of timekeeping might be completely different and the dominoes that dropped and led to mechanical computing. Today, many developers post code to social coding sites like Github in much the same way, using a variety of licenses. Sometimes these are small scripts that might save others a couple of hours. Other times they’re entire projects for complicated apps and services.
Not everyone is going to post something that changes the world, like Graham’s designs - but some projects have made technologies such as machine learning much more approachable. One thing is certain is that the aggregate of open source software has certainly changed the world by hastening development of software in nearly every imaginable use case.
Choosing to open source, or effectively give work product away for free is a choice. Doing so doesn’t mean we aren’t commercializing intellectual property in some way; many earn higher salaries, earn money from those who license code, or maybe get stock grants like Linus Torvalds when companies commercializing his Linux went public. Still, none of these are certain and most open source solutions come from those who love what they do and feel passionate about it. Without open source tooling, web apps wouldn’t be able to run in Tomcat, Rails, Go, Python, or PHP. It is the building block of nearly any SaaS or other enterprise software offering. Those paid tools can build on top of the open source tooling - but in many cases if they are distributed for on premise installations with the open source tools a license must be paid to a developer (or at minimum a reference to the developer’s ownership in the installation).
A step beyond open sourcing our tooling is to copyright it. Let’s say we create a piece of software to sell or lease access to. We can copyright our code. This doesn’t protect all of the ideas and innovations the code surfaces but does provide protection to the copyright holder against others using their code for commercialization purposes if able to decompile or see unrendered source. Funny enough, this is actually what we’re doing in a Free and Open Source Software (FOSS) license such as MIT or GPL, just with different nuances.
One such nuance is that when officially copyrighting software with a government, such as the means described in chapter 700, section 721, and chapter 1500, section 1509.1(c), of the Compendium of U.S. Copyright Office Practices. These practices date back to a case that dealt with a piano roll (to play music) in 1908 that then led to the Copyright Act of 1909 and then the Copyright Act of 1976, both catching up to the next steps in technology.
Copyrighting software seems to be less and less of a thing over time, while open source becomes more and more a thing. One reason is that for most governments to issue a copyright, we have to pay them to effectively escrow source code. This is outdated in an era of continuous testing, continuous research, continuous devops, continuous devsecops, and the resultant sometimes nightly software release cadence.
Governments move slower than innovation. Much of the submission information from governments discusses “the first 25 pages of code” and in an object oriented programming world it’s likely we’ll have potentially hundreds of paragraphed-sized micro-services as separate bits of code. Or we’re supposed to submit code on a CD-ROM. Thus, officially copyrighting software, while an important option to consider, is again less feasible than it once was. This being said, the line between the entertainment industry (where copyright is crucial) and software can be incredibly thin. For example, there are works such as video games with rich audio and video materials that are easily copyrighted.
Most technological progress is putting two things together that haven’t been put together yet. Netflix didn’t invent subscriptions or DVDs. But they did patent their subscription DVD service - putting a subscription model on top of movie rentals over the mail (yes, this was before they moved into a streaming service).
Patents are assigned to people who can then license them. This is to foster innovation. Examples range from early mechanical calculators invented by Blaise Pascal (called a royal privilege when King Louis XIV granted his) to Jony Ive from Apple getting 1,628 patents ranging from the Apple Newton to the stand on an iMac to parts of the Apple Watch. Here, inventors are granted a license to exclude others from making or using an invention in the same way thus protecting their intellectual property.
Protecting our works allows us to incentivize research and development as a society. We can see a sharp rise in innovation since the modern patent system began in Venice in 1450. THis involves everything from stained glass in Renaissance England to chemical formulas to plastics and now computing. Patents can also be used as a security, further allowing inventors to profit off of works. Nikola Tesla couldn’t bring his electric inventions to the masses. So he licensed his patents to George Westinghouse who, later requested relief on the patents to make the Westinghouse Company more competitive. Creators have all kinds of options.
We don’t have to open source or patent our ideas or creations. Instead we can just put them out to market in the hopes that a first mover advantage brands us as thought leaders and innovators, winning customers. Actually, most who choose not to do anything special with creations except maybe put them out there as a monthly service don’t make this as a decision. It’s a valid decision, but often out of inaction rather than deliberation.
Choosing not to open source, patent, copyright, or a variant of these often just happens because we build something, not knowing it’s special. Every country has a period with which we can file a patent or provisional patent. If we don’t do so then others can copy our works. Again, this is fine but each organization should make a conscious decision about it.
Once ideas and innovations are out there, there are still more options. As patents near expiration or when something wasn’t protected and begins to gain mass appeal, we may choose to reduce the friction of consumers to use the innovation. That’s when we look to create standards.
Standards ensure a rapid proliferation of a technology in a manner that values interoperability. For example, we used electricity in experimental capacities for centuries but the standardization once patents began to expire (and thus the formation of international standards boards) led to an explosion in the use of electricity for everything from lighting homes to food preparation and refrigeration to
We need interoperability when we are in a red ocean of competitors and an innovation is used by third parties who are dependent on us. Think of TCP/IP, DNS, HTML, and TLS. These are the building blocks of the modern internet and the standards are well defined, fought over, and ratified by the Internet Engineering Task Force (IETF). This allowed companies like MCI to commercialize leased lines to access networks, then web browsers, then digital commerce, and now the mobile revolution. Computers have communicated with one another since the early days of transistorized computing and throughout the era of teletypes and time sharing. But those splinter-nets were not world changing like the Internet was, in large part due to the standards bodies created by the academics that did the original research.
Consider how game changing the ARM chip has been for ubiquitous computing. Apple, Samsung, and others license the ARM chipset architectures (which are protected via patents) and bolt their own patents on top of them. Apple backed ARM initially for the Newton, just as Acorn (the original A in ARM) had financial troubles following the decline in popularity of the BBC Micro. The government research done by The University of California, Berkeley and others into the RISC architecture caused the ARM alliance (not a publicly traded company) to continue Moore's Law and develop fast, low cost chips that are full systems on a chip (SoCs) that enable ubiquitous computing.
Because Apple and Samsung are members of the same consortium and license similar intellectual property, the number of transistors in an M1 is almost identical to a Samsung chip. But the Apple chip has a lot of extra attention to detail in places that make the operating system run better by leveraging features Apple engingeers add to the SoC. The example shows that consortiums can share large costs. But they can also help spread a standard while vendors who are still innovative on top of the standard can gain a competitive advantage from a standard becoming omnipresent. If an organization's capacity to innovate wanes, others may gain that advantage by displacing previous methods (especially when those give another vendor a competitive advantage), reducing costs given supply chain standardization, and by employing a myriad of other tactics.
One aspect of consortiums that can get hard is competitiveness. This competitiveness may manifest itself in two researchers at universities competing to have their ideas implemented in a standard. That competitiveness might also be derived from multiple companies who compete with one another. Hyper-competitive organizations (or individuals) can be a challenge to navigate when consensus building. Yet the capacity grows as there are more individuals to share the work, unless we cross that barrier of individual contributors where Brooks's Law from The Mythical Man Month kicks in.
As consortiums grow, so grows the potential impact. Therefore, working with competitors and inviting more competitors brings not only more legitimacy to the effort but also more ideas and support that can make the work infinitely more useful to consumers. Excluding competitors simply results in a diluted user experience across an industry. Once a consortium grows to a given size it will slow progress. But that slowed progress offers a greater diffusion of the ideas in that slowing progress makes the progress more scalable and thus further benefits to all members by allowing each to catch up.
It turns out we don't always own what's in our heads. Before commercializing or distributing our creations for free we should take care to acknowledge who actually owns the intellectual property. For example, if we created a tool while working for a university under a grant provided by a corporation or governmental agency, there might be a dozen written agreements we need to comply with. If we were on staff at a company but didn’t use any of their equipment during the development, we should be careful to have agreements reviewed before assuming we own that intellectual property.
There are plenty of areas where the lines between these get blurred. Consider this, the Eckert-Mauchly Computer Corporation received a patent for the ENIAC, which was developed at the University of Pennsylvania. That patent was overturned in part because every other computer company was paying them royalties - suffocating the entire computer industry at the time. Officially the reason was that there was a prior work that the founding team knew about (the Atanasoff-Berry Computer out of Iowa State University) but that device was never proven to be functional as the creators were called off to participate in the World War II effort prior to its completion.
Also keep in mind that patents have fixed terms, much like copyright. We don’t get to keep an invention to ourselves forever. Most utility patents last 20 years, which in the world of technology is several lifetimes. By then tactics such as those described in Business of Platforms and Platform Revolution can help us establish a strong ecosystem. So hopefully we can make it ubiquitous and stay ahead of the competition once our term expires, though!
Let Creators Create
Creators need to create. It’s just part of it. The laws and regulations out there are to help creators protect their creations. But we don’t have to engage in all that. We can just build cool stuff. Only history teaches us that we maybe should have protected a creation. And maybe, like a Linus Torvalds or a George Graham we don’t worry about all that. Or maybe we need others to join us to bring an aspect of technology forward and we choose to create a standard and possibly a consortium to support the standard. These are all practical, valid, and on a case-by-case basis should meet with our own world view.
What we shouldn’t do is try to stifle innovation. In his book Managing Corporate Lifecycles Ichak Adizes tells us that’s what organizations on the decline do. Protecting our intellectual property promotes innovation, but trying to box others out or over-extending our interpretation of what belongs to us is a predictable indicator of a dysfunctional organization. As Kim Scott points out in her book Radical Candor, an innovative company is comprised of thousands of small innovations that make us operationally excellent.
Making organizations excellent is about every person being open and honest and bringing their innovations to the table and promoting them to spread in whatever tactic makes sense. It's about decentralization of ideas and intellectual freedoms - within reason. That's what takes us from a dark room with a single light bulb to one that shines a light on everyone, in every corner of the room.
Finally, we should respect how others choose to leverage their intellectual property. Richard Stallman arguably became the founder of the open source world when he released GNU Emacs, now in practically every variant of *nix. Microsoft employees are rumored to put the faces of open source contributors on dart boards during their lost decade. Some nation-states don't respect the patent laws of others (officially or unofficially). The world is not a simple place and the values are different between cultures and individuals. Some evolutions need to be handled differently than others. But however creators and their sponsors choose to wield intellectual capital, we should appreciate their contributions and respect their wishes. After all, each of the strategies and tactics outlined in this article are valid and help push the world forward!