Rambus wins -- who loses?

The Court of Appeals overturned the Federal Trade Commission antitrust sanctions against Rambus, which in turn overturned an earlier FTC administrative law judge who ruled in favor of Rambus. The whole issue was whether Rambus was honest about its patents in a timely fashion while JEDEC was making a RDRAM standard.

The case of Rambus and its IP strategies are among the most controversial issue in IP and standards. I would say “among” only because as with certain other topics, only one side of the story tends to get reported and many would just as soon see the company lynched. Rambus did win one trial alleging patent infringement by big vendors, who never really wanted to pay royalties.

Even for those (few) who sympathize with Rambus, the ruling has the unfortunate effect of introducing turmoil into many aspects of IP and standardization. The Rambus decision was previously a bright line that SDO managers (and participants) could count on. Now, we need to see whether Rambus’ escape is merely a process issue (JEDEC left a loophole that meant Rambus couldn’t be punished) or if it sets a more general precedent — theoretical or practical — that makes it impossible for SDOs to prevent gaming of the system.

Perhaps the 1995 case that Dell settled would be the precedent for now. My sense is that absent FTC v. Rambus we will need a new legal decision (or administrative act upheld by a court) to set the boundaries of gaming the system. There have been very few cases on this issue that have gone to trial in the past 15 years, so it might be another 5 years before we get a controlling precedent. That uncertainty would be good for law firm billable hours but bad for everyone else.

Patents and commodities

Today's paper has the (not widely published) report that Netgear is being sued for patent infringement over its Wi-Fi gear. Netgear (along with Cisco-owned Linksys) is one of the decade-old commodity producers of network equipment, but is more recently facing competition from Chinese brands.

The lawsuit was filed Wednesday, according to Bloomberg:

Dec. 19 (Bloomberg) -- Netgear Inc., the maker of networking equipment for homes and small businesses, was sued by Fujitsu Ltd., LG Electronics Inc. and Royal Philips Electronics NV over patents covering wireless computer networks.

Fujitsu, LG and Philips are part of a patent-licensing pool created in 2004. Participants share inventions covering the so- called 802.11 standard, a protocol for wireless local area networks that lets computers talk to each other at high speeds.

While Netgear refuses to pay royalties to patent holders in the pool, it claims in advertisements that its products comply with the standard, Fujitsu, LG and Philips said Dec. 17 in a complaint in federal court in Madison, Wisconsin. Netgear products targeted in the suit include wireless routers, personal- computer cards and adapters.

This is really interesting for several reasons:

• With the notable exception of MPEG4, patent pools have been rarely successful for coordinating patent holder interests.
• Thus far, IEEE standards such as Wi-Fi seem to have had fewer patent suits than most other standard (although Buffalo Technology lost a case last year).
• Fujitsu, LG and Philips are not major producers of this gear except in their respective home markets.

Wi-Fi and its parent Ethernet have been one of the most successful (and most commoditized) multivendor standards of all time. Does this presage a new flurry of patent filing (or litigation) for Wi-Fi users? (Of course, the patent thickets around WiMax and 802.16 constitute an IP Lawyer Full Employment Act). Will it push up the price of gear? Will it form an entry barrier in this commodity business, with big electronics companies pushing out smaller companies the way that Telcos have taken on Vonage?

Apple decides to ship UNIX(R)

Finished one course but still behind on grading.

Apple has finally decided to ship a UNIX operating system — its Leopard (OS X 10.5) shipping October is fully compliant with two Unix validation suites: the Open Group’s Single UNIX Specification (SUSv3) and the IEEE’s POSIX 1003.1.

Since March 2001, has been shipping OS X based on two Unix-derived operating systems — FreeBSD and Mach (which was mainly associated with NeXT). However, its rivals have been sniping at its claim of shipping a UNIX operating system because it had not (previously) passed compliance tests.

A decade or two ago, people fought for the rights to use the UNIX® trademark. POSIX was invented so people could legitimate UNIX clones without having to pay to use AT&T's code or trademark. The 4.4BSD-Lite release in 1994 marked the first full release of a UNIX-like operating system without AT&T code.

While POSIX provided technical interoperability, by the time standardization was completed (and the “Unix Wars” were over), Windows had achieved total world domination. Jim Isaak — chair of the POSIX committee for 15 years and recently a candidate for IEEE Computer Society president — wrote about all the dilemmas of POSIX standardization in a paper for my HICSS minitrack on IT standards. He published two slightly different versions of the story in the HICSS (IEEE) proceedings and a special issue of JITSR.

EU considers Qualcomm as next Microsoft?

As predicted, the European Commission has wasted no time in going after another American firm using the anti-monopoly precedent established with Microsoft. This week, the target is Qualcomm. Still on deck are Intel, Rambus and Google.

The EC investigation of Qualcomm is following up on a request 23 months ago by Qualcomm’s two main chip rivals — TI and Broadcom — as well as European handset (and chip) makers Nokia and Ericsson, as well as Panasonic (Matsushita) of Japan. The investigation could take as much as two years, although the EC was careful to say the action “does not imply that the commission has conclusive proof of an infringement.”

The main issue is not that Qualcomm is blocking other firms from using its technology, but the price that it charges. Specifically, Qualcomm charges the same royalty (about 4-5%) for both major flavors of 3G mobile phones — cdma2000 and WCDMA. Its accusers — including the leaders of the WCDMA camp — argue that Qualcomm should charge less for WCDMA because they successfully added lots of other IP to the WCDMA standard and thus Qualcomm’s share is proportionately less. The WSJ [registration required] quoted these rivals as saying that the fee should be less than 2%.

The case may end up focusing on that most vaguely defined standardization concept, Reasonable and Non Discriminatory licensing terms, aka RAND aka FRAND (Fair, Reasonable and Non Discriminatory). Anyone who studies (or participates in) standardization knows that the term has been left deliberately vague as a way to win agreement among various parties. Rather than come up with a more specific ex ante definition to provide predictability for all concerned — something ETSI has notably shied from doing — key ETSI members want the chief EU regulator to impose an ex post definition based on its own judgment.

There are key differences between US and European law that make this action unlikely to succeed in the US. One is the (current) policy favoring patent holders in the US; the second is that US monopoly law requires demonstrating harm to consumers, while EU law considers harm to competitors to be an important issue. There is also the issue that the EC seems to be choosing unpopular defendants first — Qualcomm being the only company more hated than Microsoft in the European ICT industry — presumably to set a precedent. Once the precedents are established, they could be applied to other, less controversial firms (which today would still include Google).

Qualcomm faces other legal challenges, including its expired patent license with Nokia and its ongoing legal fights with Broadcom. Qualcomm hired a new general counsel Friday — Donald Rosenberg, formerly of Apple, and before that a 30-year IBM veteran. He certainly has his hands full.

Technorati Tags: 3G, antitrust, EU, Microsoft, standardization

Avoiding platform fragmentation

I'm going to continue posting regularly, but hope to do so with less time away from my day job. So bear with me as I try shorter posts.

One of the big problems that embedded Linux for mobile phones has right now is that it’s a technology, not a platform. Below is a slide from my presentation Monday at the DRUID conference on Apple’s iPhone strategy.

When I say “platform,” I mean in the sense of the seminal 1999 article by Bresnahan & Greenstein, or my own (far less influential) 2000 article with Jason Dedrick (which referred to a “standards architecture”, a terminology I no longer use). The leader in platform research is Anabelle Gawer of Imperial College London, who has spent pretty much her whole career since her 2000 MIT dissertation (on platforms) writing about platform issues, including the HBS book adapted from her dissertation.

At it turns out, I chatted with Anabelle last week at Imperial, we were presenting in the same session Monday evening, and chatted about platform issues at dinner (before devolving to more prosaic issues like how to raise a family on a professor’s salary in high-cost areas like London or Silicon Valley). (I used the same session and dinner to solicit other blog readers, like Hui YAN of Aalborg U.)

This morning, the near-solstice Danish sunlight woke me at 3:30 a.m. and I somehow never made it back to sleep. Trying to kill an hour (which turned into 3) I browsed through my RSS reader, and found an interesting article on LiPS, reacting to the same LiPS news I mentioned last week. Symbian developer Simon Judge believes that while allowing for vendor variation, LiPS will reduce the existing fragmentation of Linux on mobile.

Judge argued that the LiPS strategy of variation under standard APIs makes for a better platform than the Symbian strategy of variation on top of standard APIs:

The Symbian OS has evolved to push phone specific functionality (and unfortunately some non-specific) on top of the platform and this has resulted in UIQ, S60 and FOMA. These are not just UI variants but also include many extra internal and 3rd party APIs. Fragmentation is undesirable not only for developers but also for phone OEMs because they have to license extra software other than Symbian OS to create a new phone (or spend an inordinate amount of effort creating the missing components). …

If the LiPS extensibility scheme of pushing phone capability variations under rather than on top of the OS platform a) is workable and b) is adopted by phone OEMs, then it might actually prevent fragmentation.

In fact, Symbian OS is not a platform, it’s a shared technology that enables Nokia’s S60 and Sony Ericsson’s UIQ platforms. The fragmentation of the Symbian application APIs is unfortunate. Somewhere I read or heard that UIQ (which began as a cool pen-based UI) has more apps than S60, even though its installed base of S60 is 3x or 4x that of UIQ.

However, this is a painful reality of the political compromise that created Symbian as the anti-Windows Mobile coalition. When it was founded in 1998, (effectively as a Psion spinoff) Symbian actually tried to have a common UI and platform. Last month, I found a telling interview with Colly Myers, Symbian’s founding CEO. When asked what he would most want to do over as CEO, Myers replied:

We wouldn't have spent time on user interfaces. We'd have left that much earlier. Everyone was keen to share and we tried hard for two years, but it was never going to happen. Everything about those companies [phone OEMs] is based in their own UIs. So that was two years wasted.

In other words, Nokia and Sony Ericsson don’t want to end up like HTC (or Dell or Compaq) as nothing more than commodity distributors of someone else’s look and feel.

Unix (and now Linux) has had its own GUI wars. Back in the 1980s, MIT’s X allowed for the idea of common APIs but different look-and-feel, but (AFAIK) the APIs were incomplete — applications written for the various X-based GUIs (CDE, Motif, KDE, Gnome), are not binary compatible.

By joining GMAE LiPS has firmly sided with Gnome, and picking a single GUI is a good step towards defining a common platform. But then we’re back to Symbian’s dilemma — how do all the LiPS members distinguish their products with a common GUI?

Oops, this was supposed to be a shorter post. Maybe next time.

Technorati Tags: embedded Linux, mobile phones, platforms, standardization

Who runs the Linux Foundation?

The Free Standards Group has finished its friendly bailout of Open Source Development Labs, with the announcement Tuesday of election results for the Linux Foundation merged board of directors. The result seems to be an entity that is governed according to the FSG, but run more by the OSDL than the FSG.

The old FSG board had 9 members, and the OSDL board had 14 (later 12) members. The carryovers to the 14-member 15-member LF board are unsurprising:

• James Bottomley (SteelEye), Dan Frye (IBM), Hsashi Hashimoto (Hitachi) and Tsugikazu Shibata (NEC) from the OSDL board;
• Mark Shuttleworth (Ubuntu) and Andrew Updegrove (law firm Gesmer Updegrove) from the FSG board;
• Masahiro Date (Fujitsu) and Markus Rex (Novell, formerly of SuSE) from both boards; and
• Doug Fisher of Intel, replacing two Intel representative: Fisher (former OSDL chairman) and Dirk Hohndel (of FSG)

Slightly more interesting are a few new faces:

• Christine Martino of HP replaces Steve Geary of HP from both boards;
• Wim Coekaerts, the main Linux person at Oracle;
• Christy Wyatt of Motorola;
• Tim Golden of Bank of America;
• Brian Pawlowski of NetApp; and
• Marc Miller of AMD. This never would have happened at OSDL with Intel as one of its key founders and one of the largest (if not the largest) investor.

The most interesting to me were the names that were dropped:

• From FSG: Theodore Ts'o (top Linux lieutenant) and two nonprofit reps, Jim Lacey of the Linux Professional Institute and John Weathersby of the Open Source Software Institute;
• From OSDL: Stuart Cohen (who quit as CEO in December), his predecessor Jerry Greenberg (ex-TurboLinux, later OSDL CEO from 2002 to 2003), Larry Augustin (founder of VA Software), and Frank Fanzilli (retired CIO of CSFB).

The LF board looks very very corporate, with the same heavy Japanese representation as OSDL. The LF did away with the two dedicated non-profit seats, although it keeps three at-large seats; the remaining seats are reserved for paying members. As with FSG, there are tiers of members and directors, and in fact the LF retains the same membership tiers (and the website still lists the same members) as the FSG. However, the election doesn’t seem to conform to the Linux Foundation bylaws.

The eight Platinum members who pay $500k/year are each guaranteed a seat, which explains the holdovers (Fujitsu, Hitachi, HP, IBM, Intel, NEC, Novell) and the new Oracle rep. The Gold members who pay $200k/year are promised three seats: AMD, NetApp and BofA Motorola. The Silver who pay $20k/year get one director, apparently BofA. And then the three at large directors: one required by the bylaws to represent the technical advisory board (Bottomley) and two other at-large directors (Shuttleworth, Updegrove).

Another measure of who won the merger is infrastructure. The directory structure of www.Linux-Foundation.org is that of the old www.FreeStandards.org, and the LF headquarters is in San Francisco (as in FSG) and not Oregon (as was OSDL).

Update 8:30 p.m.: Mea culpa. I had several initial mistakes which led me to believe there was a gap between the bylaws and the new directors. The StandardsBlog posting omitted Wyatt of Motorola (a Gold member) and thus implied there were 14 members; the official press release is complete. Amanda McPherson of LF e-mailed to clarify that BofA is a Silver member (although they are still not listed among the official members on the website.)

Technorati Tags: consortia, Linux, open source, standardization

Is Standardization Broken?

As I’ve said my research and this blog, open product compatibility standards provide the essential interoperability for the creation and use of most IT products. Of course, openness is a matter of degree: even the most proprietary standard usually has some degree of openness to allow third party use and complementary products such as software applications.

When creating standards for a given technology, firms face four competing imperatives:

• technical interoperability, the nominal (and usually easiest) goal of a standardization effort;
• creating value, both through features of the technology, and by encouraging a supply of products that deliver or build upon that technology;
• capturing value, since if the various producing firms don’t make money there’s not much point in getting involved; and
• timeliness, because if the standard comes too late (as with 56K modems or 802.11n), firms will go ahead and ship products without a standard.

On Tuesday, Carl Cargill delivered an impassioned plea at the DCCI conference arguing that the standardization regime as we know it will be unable to meet the demands of the 21st century IT industry. (His slides are not yet posted, so for now I’m working off my notes and a private copy of the slides.) A sample quote:

We’re post-industrial society and we have a pre-industrial standards regime … We still have the basic model for ISO as we had in 1945.

Cargill focused on standards consortia, which he described as "where we get together and help each other". Some of his major points:

• Consortia are increasingly balkanized, with declining participation.
• Standards are no longer an open effort to encourage interoperability but an attempt to block rivals. [NB: Pam Jones of GrokLaw recently used documents from a Microsoft court case to show how proprietary extensions eliminate interoperability and buyer choice.]
• Standards are largely ignored by teachers, researchers and consultants.
• China uses standards as an industrial policy, Europe for social and political goals, but US policy largely ignores them.

While the railroads and Gutenberg had 50 years to get their act together, by Cargill’s estimate, we have only 5 years to fix standardization. If cooperative standardization fails, the alternative is proprietary standards.

Some readers might say Carl who? Cargill did standards at DEC, Netscape and now is Chief Standards Officer of Sun. He’s been the most visible proponent of U.S. IT standardization for more than a decade, having testified before Congress, written various books and articles, funded an online library of standards research, and sponsored a series of provocative industry workshops on standardization issues. We first met at the 1999 edition of SIIT, the main academic conference on IT standards.

From any other source, I might accuse the speaker of having a lack of perspective: after all, cooperative standardization has often been about jockeying for position and digging in your heels if you don’t get what you want. But Carl’s no Pollyanna: he not only lived through the Unix wars, he was a field commander for one side.

If there’s a canary in the coal mine, it’s last year’s IEEE 802.20 mess, where Intel and others aligned with the competing 802.16 (WiMax) standard sought to block a standard backed by Qualcomm. In an unprecedented move, the IEEE suspended the committee and its leaders until it straightened the mess out.

Tim Simcoe noted how firms that try too hard to capture value won’t create any. I’d like to think that this would lead firms to self-correct, but obviously there are cases where such self-regulation has failed. One cause may be that a firm prefers the status quo to a successful standard; as the lawyers like to say, cui bono?

Update February 4 (08:45 a.m.) — Carl’s slides have been posted to the program.

Technorati Tags: infrastructure, open standards, standardization

Adobe’s PDF as an Open Standard?

I was travelling, but this week’s big standards news is that Adobe announced it will submit its PDF file format for approval as a de jure standard by the ISO — not directly, but through a friendly trade association. (Yes, I know, this week Microsoft is also starting the half billion dollar roll out of its long-delayed maintenance release).

Some have speculated that the timing is driven by Microsoft’s introduction of the competing XPS format with Vista this week. I don’t follow either Microsoft or Adobe closely enough to add anything to the speculation — I’m a researcher on open source and mobile phones who has been Mac-only for the past 23 years.

As I said before, there are two tests for an open standard:

• Is there an open process? Adobe claims others will be able to suggest changes to the standard.
• Is there an open outcome? In this case, that would mean non-licensed implementations of players and generators on par with Adobe’s.

It turns out that Adobe has released various revisions and subsets of the PDF spec since that spec was published as a 1993 book, and there have also been a few competing implementations.

Still, it seems like “open” doesn’t seem to come naturally to Adobe on PDF. CEO Bruce Chizen said in a 2001 interview about Apple’s independent implementation of PDF in its recently-released OS X (10.0.0):

We continue to work closely with them to give them some indication of what we are doing, because we want to try to have compatibility, but you can probably expect that the PDF created from an Adobe application like Acrobat is always going to be richer than Apple's implementation of PDF.

Certainly Apple’s implementation lags Adobe’s updates to the spec: Adobe is standardizing version 1.7 of the spec while Apple’s 10.4.x (“Tiger”) is only at version 1.2. Is this because outsiders get the spec after Adobe? Because Adobe issues gratuitous changes to the spec to make downward compatibility harder? Because it’s hard to implement a PDF writer or reader? Or because it’s a low priority for Apple? I don’t know, but so far I haven’t seen any need for the features after Acrobat 4.0 (PDF 1.2).

I am a little uncomfortable with the idea of shopping for a friendly association to carry standardization forward. It’s a common approach used by proprietary firms to get an officially blessed standard while retaining de facto control of the standardization process. OTOH, Adobe has reason to be concerned about losing control. As my friend Tineke Egyedi wrote in 2004, Sun created Java but when it (twice) tried to make it a public standard it got blindsided by its industry rivals in the standardization committees.

When it comes to the promise of an “open” PDF format, both forms of openness will only be clear over time. IMHO everyone should start out naturally skeptical about proprietary companies claiming to be open. IBM's decision to open source what became Eclipse is a rare example where the reality matched the hype.

Andy Updegrove is more positive on this than I am. Who knows which one of us will be right in the long run?

Technorati Tags: Adobe, ISO, open standards, PDF, standardization