Category Archives: Patents

Oedipus meets IT management?

Having received John’s approval to reclaim the “mighty” adjective, I am going to have a bit of fun with it. More specifically, I am toying with adding VMWare to the list. Clearly, VMWare doesn’t want to go the way Sun did with Solaris (nice technology, right place at the right time, but commoditized in the long term). They have supposedly surrounded themselves with a pretty good patent minefield to slow the commoditization trend, but it will happen anyway and they know it. Especially with improved virtualization support in hardware making some of these patents less relevant. For this reason, they are putting a lot of effort on developing the IT management side of their portfolio.

One illustration of this is the fact that VMWare recently recruited the Senior VP of systems management at Oracle to become its Executive VP of R&D (incidentally, this happened a couple months after I joined his team at Oracle; maybe the knowledge that he wouldn’t have to deal with my bad sense of humor for too long made it easier for him to approve my hiring). I don’t think it’s a coincidence that they chose someone who is not a virtualization expert but an enterprise infrastructure expert (namely database performance and management software).

So, do we have the “Mighty Four” (Oracle, Microsoft, EMC and VMWare) for a nice symetry with the “Big Four” (HP, IBM, BMC and CA)? Or does the fact that EMC owns most of VMWare make us pause here? Might a mighty mother a mighty? How do you run a 85%-owned company whose strategic directions takes it toward direct competition with its corporate owner? EMC and VMWare are attacking IT management from different directions (EMC is actually going at it from several directions at the same time, based on its historical storage products, plus new software from acquisitions, plus hiring a few smart people away from IBM to put the whole thing together), so on paper their portfolios look pretty complementary. But if aligning and collaborating more closely may make sense from a product engineering perspective, it doesn’t make sense from a financial engineering perspective. At least as long as investors are so hungry for the few VMWare share available on the open market (as a side issue, I wonder if they like it so much because of the virtualization market per se or because they see VMWare’s position in that market as a beachhead for the larger enterprise IT infrastructure software market). And, as should not be suprising, the financial view is likely to prevail, which will keep the companies at arms length. But if both VMWare and EMC are succesful in assumbling a comprehensive enterprise infrastructure management system, things will get interesting.

[UPDATED 2008/5/28: The day after I write this, VMWare buys application performance management vendor B-hive. I am pretty lucky with my timing on this one.]

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Filed under Everything, IT Systems Mgmt, Patents, People, Virtualization, VMware

Unhealthy fun with IP aspects of optionality in specifications

The previous blog post has re-awaken the spec lawyer in me (on the hobby glamor scale, spec lawyering ranks just below collecting dead bugs). Which brought back to my mind a peculiar aspect of the “Microsoft Open Specification Promise“.

The promise was published to address fears some people had that adopting Microsoft-created specifications (especially non-standard ones) would put them at risk of patent claims from Microsoft. The core of the promise is only two paragraphs long. The first one contains this section:

“To clarify, ‘Microsoft Necessary Claims’ are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement only the required portions of the Covered Specification that are described in detail and not merely referenced in such Specification.”

That seams to pretty clearly state that only the required portions of a specification are covered by this promise. Which is a very significant limitation, as specifications often tend to (over-) use optional features. But if you read further, the list of “Covered Specifications” (those to which the promise applies), contains this statement:

“this Promise also applies to the required elements of optional portions of such specifications.”

I find this very puzzling because it seems to contradict the previous statement. And more importantly, it’s hard to understand what it really means. That’s where the fun starts:

For example, if my spec defines a document <a> with an optional element <b> that itself has an optional sub-element <c>, as in:

<a>
  ...
  <b>
    ...
    <c>...</c>
  </b>
</a>

The <b> element is a required part of the “b” optional portion of the spec (the portion of the spec that defines that element), so I guess it is covered, but is <c>? That’s an optional element of an optional portion (the “b” portion) of the spec, so it isn’t. Unless you consider the portion of the spec that defines <c> (the “c” portion of the spec) to be an optional portion of the spec itself. In which case the <c> element is covered.

But if you take that second line of reasoning, then everything in the spec is covered because for any feature, no matter how “optional” it is, there is a portion (optional or not) of the specification that describes this feature. And if you are implementing that portion, for example the portion that defines element <foo>, by definition element <foo> is required for it (how can an element not be a required part of its own definition?). But if Microsoft intended to cover all parts of the specification, why not say so rather than this recursion-inducing “required elements of optional portions” statement? And if not, why do they choose to only cover optional elements that are one degree removed from the base of the specification?

Wouldn’t it be fun to see a court of law deal with a suit that hinges on this statement (provided that you’re not a party in the suit, of course)?

When a real spec lawyer took a look at this promise, he didn’t comment on the second statement, the one that raises the most questions in my mind.

[UPDATED 2008/4/29: The “promise” has seen many updates. The original (which is the one Andy Updegrove reviewed at the previous link) came out on 2006/9/12. The one I reviewed is dated 2008/3/25. There is no change history on the Microsoft site, but the Wayback machine has archived some older versions. The oldest one I can find is dated 2006/10/23 and it does not contain the sentence about “required elements of optional portions” that puzzles me. So it’s likely that the version Andy reviewed didn’t include this either and as such was clearly limited to required portions of the specifications (something that Andy pointed out).]

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Filed under Business, Everything, Microsoft, Patents, Specs, Standards

+1 to the FTC

I noticed two patent-related news items tonight that could be of interest to those of us who have to deal with the “fun” of patents as they apply to IT. The first one is an FTC settlement that enforces a patent promise made in a standard body. It is not uncommon for participation in a standardization group to require some form of patent grant (royalty-free, RAND, etc). This is why employees in companies with large patent portfolios have to jump through endless loops and go through legal reviews just to be authorized to join a working group at OASIS (one of the organizations with the clearest patent policy, patiently crafted through a lot of debate). Something similar seems to have happened at IEEE during the work on the Ethernet standard: National Semiconductor promised a flat $1,000 license for two of their patents (pending at the time) that are essential to the implementation of the standard. And we all know that that little standard happened to become quite successful (to IBM’s despair). Years later, a patent troll that had gotten hold of the patents tried to walk away from the promise. In short, the FTC stopped them. If this is of interest to you, go read Andy Updegrove’s much more detailed analysis (including his view that this is important not just for standards but also for open source).

At my level of understanding of intellectual property law as it applies to the IT industry (I am not a lawyer, but I have spent a fair amount of time discussing the topic with them), this sounds like a good decision. But it is a tiny light in an ocean of darkness that creates so many opportunities for abuse. And the resulting fear prevents a lot of good work from happening. The second patent-related news item of the day (a patent reform bill driven by “major U.S. high-tech companies”) might do something to address the larger problem. Reducing damages, strengthening the post-grant review process and ending the “forum shopping” that sends most of these suits to Texas sounds like positive steps. All in all, I am more sympathetic to “major U.S. high-tech companies” (which include my current and former employers) than to patent trolls. At the same time, I have no illusion that “major U.S. high-tech companies” are out to watch for the best interest of entrepreneurs and customers.

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Filed under Business, Everything, Patents