This patent, and several like it, weren’t necessarily held by inventors, as I learned a years back, is not at all uncommon.  Patent investors, who are typically intellectual property attorneys, underwrite the investments in patents like the C2 one, and then derive income from their ownership over the patent certificate, either by licensing technology, by selling the patent, or by suing for damages on infringement of the patent inclusive of the intellectual property.

I know this particular patent and the family of about two dozen dangerously similar patents because I was retained by a San Francisco law firm for about six months trying to help them sort the patents out and translate them into plain-English for some white-haired, Harvard-educated attorney (or judge) to understand.  I still have a copy of the patent sitting in my drawer.

The real problem with this family of patents, which’ve been issued to everybody from C2 to Verizon to Joe Six Pack, is that they all overlap significantly in terms of the processes or inventions they describe.  What’s worse, they all describe the same essential process of packetizing audible information and transmitting over a non-circuit-switched network.  Indeed, these patents aren’t just similar. When you boil them down to their essentials, they’re largely identical.

And this is one problem the Electronic Frontier Foundation is fighting.  If the Patent and Trademark Office is Issuing patents that cover the same process or technology theory to different parties at roughly the same time (all of these patents were either pending or granted from 1988 until roughly 2003), it really makes you wonder if the patent review teams at PTO are operating in independent vacuums, or if the processes described really are too technical for the PTO to comprehend.

The EFF would probably say that the PTO hasn’t been particularly effective since The Flying Nun was popular.  And, to the degree I find it practical, I agree with the EFF.  But I disagree with their operating theory that patent law is more flawed than effective because it stifles innovation.  The GNU/Open Source movement is the shrill cry of software populism, and I appreciate that deeply, even if I don’t believe software “wants to be free”. Haha.

And for all its heroism, Open Source is also the linchpin of poor quality assurance, the opposite thinking of service level agreements, and the lasting symbol of a sort of techno-hippyism that has lost its way while the corporate world, where all this technology is utilized, took GNU’s good ideas and left its mission behind.   That is, for every stifled innovation credited to the PTO, I can name two that occurred because of ownership of intellectual property by motivate, equipped organizations like Microsoft and IBM.   The EFF and the Open Source community are less equipped and less motivated to innovate because their feet aren’t being held to the bottom line fire.

The PTO just needs to get better at understanding inventions.  My idea, put them in the hands of motivated companies that can do something with them, and get the attorneys out of the patent investment business.  If they want to profit from innovation, let them buy stock like the rest of us.

But I’ve grappled with the open-sourcing of Android for a couple of reasons.  When you open source something, it’s either because you’re absolutely desperate to maintain a foothold or create one (like when Netscape Corp. spun off the Mozilla project), because the intellectual property being open-sourced is already stale (the Quake engines, etc.), or because the chances of achieving marketplace competitiveness are actually improved by going open source.  It’s one of the three, in my mind.

Sure, people say the Open Source community provides more abundant creative contribution and discourse, but I don’t necessarily buy that argument.  Don’t confuse Open Source advocacy with volunteerism.   Volunteer programmers get stuff done only when there’s something in it for them.  But real volunteers get stuff done because there’s something in it for somebody ELSE. Any contributions brought to Android by the outside world that are worth assimilation into the project are going to create project management expenses for Google, and the big G has always been an innovation leader (as opposed to a leech), so sucking the community’s cheap or free “cool new ideas” into Android is NOT what Google is up to.

They’re also not desperate for a market share grab.  Android is so far beyond anything Microsoft and RIM have brought to the table that perhaps only Apple’s iPhone is the only valid comparison.  And Apple isn’t running away with the mobile market. There’s just too much entrenchment in the wireless industry, what with all the lock-in contracts and vendor exclusivity and so on.  So Google’s open sourcing is not likely to have an effect on market share, not in the short term anyway.  And it’s clear that the Android technology isn’t what you would call “stale”.

So Google’s move to open up Android has all the appearances of a tactical error.  To figure out the “why”, it’s important to look at the “when”.   The timing of this move is peculiarly unlike previous “big open source” announcements.   Since Android has a ton of buzz and is clearly on the way up, not down, the convential wisdom that only desperate companies open source their stuff does not apply.   Android will be successful in Google’s mind, whether or not it were to become an open source project.

So why? Why now?

According to the official Google posting on the matter, which rightly accuses the iPhone of having a limited, closed distribution channel, the reason for the open-sourcing is to make the platform accessible and free it from the bonds of one hardware vendor or the next.  Open sourcing isn’t necessary to make the platform accessible, of course, but if you’re going to pull out a stop or two, pull ‘em all out.  It’s Google, after all, not Microsoft.

Google sees a future where the carriers and hardware vendors cannot collude because platform choices are going to be made by consumers.   That’s the answer to the “why”.   By giving the consumers at large access to a very compelling (free) platform choice, the carriers and phonemakers have one less competitive advantage in being tied at the hip.  And that is a very good thing.