Archive for December, 2008
So I was installing a fresh version of Acrobat Reader 9 on an XP machine a few days ago and guess what … it comes bundled with AIR runtime by the looks (and there is no option to select/deselect when you try to install).
“Interesting” tactic by Adobe to rapidly grow the installed base who can run AIR applications.
My Add/Remove programs after installation
It’s a sad indictement of the state of vision and innovation in the industry when the two top players in the e-sourcing space start competing on the basis of who has the best lawyers rather than who has the best product offering.
Spendmatters covers the judgement in Ariba’s favour against Emptoris as the latest step in the Ariba/Emptoris pissing contest patent spat here , here , and here (and the commentary, as usual, is lively and entertaining).
I am not a lawyer but have had the good fortune to have to read through some patents in my time. So I figured I’d read the patents in question: 6,499,018 and 6,216,114. Just for fun. They are written in impenetrable patentese so here is what I can figure out.
The two patents claim protection for the following features. You’ll forgive me if I appear flippant, but it really is a surprise to me that you can patent such generic, obvious and trivial enhancements to the basic auction process:
- Dynamic Lot Closing Extension: Suppose you have 5 lots in your auction, each with their own closing time such that Lot 2 closes 10 minutes after Lot 1 (etc). If Lot 1 goes into overtime then Lot 2′s closing time is dynamically extended so that it always stays 10 minutes behind.
- Flexible Overtime: This means that you can extend an auction not just on “winning bid” or “any bid” but you can have a rule that says “Lot 1 extends by 3 minutes if a bid that is 1st – 4th place is received in the last 2 mintues, and Lot 2 extends by 5 minutes if a bid is received that is within 2% of the current leading bid.”
- Flexible Bidder-Determined Line Item Decision Rules: As a bidder I can set line item rules so that for example I can decrease my total bid for Lot 1 by $50,000 and have that decrease apportioned, flexibly, across the line items that make up that lot based on the rules I have specified (e.g. Item #12345 must never go below $1.50 each).
- Pending Status: The idea here is that when an auction completes it goes into “pending” status during which the buyer and suppliers can discuss whether the auction really is over or not. If they decide that the auction needs to continue they can move the auction back to a live status.
- Auction Pause: Allowing the buyer to pause an auction (while the clock continues ticking) in a lot, several lots or the auction as a whole.
- Bidder Specific Bid Limitations: In a reverse auction the idea is that you can set different ceilings above which you won’t receive a valid bid from a supplier. Apparently this is different to simply starting an auction with any “pre-bids” offered by suppliers.
Freemarkets (who readers will know I hold in very high regard for starting off the whole reverse auction industry) applied for both patents on the same day in May 1999. Even writing back in 1999, though, the points the patents cover are pretty trivial to say the least.
According to Ariba’s press release the judgement centered around “the use of individual bid ceilings and certain auction overtime rules“. As Jason describes in his coverage of the Emptoris patch this covers:
- A feature that prevents a supplier submitting a bid higher than a pre-set amount
- A feature that keeps staggered lots open when a prior lot gets extended
Some thoughts on this:
- These two points are very trivial aspects of e-auctions. They are far from “key patents for electronic auctions” mentioned in Ariba’s press release on the subject.
- But at least the really obvious parts of the patents (e.g. pausing an auction) were either considered invalid or not infringed.
- This is another reason why such “software business process patents” are considered controversial by many in the industry.
- Interestingly this news from early November seems to cast some level of scepticism over whether process patents, like the ones at the centre of this case, are even allowed in the USA. It will be interesting to see how this develops.
Lest anyone misunderstand me:
- I’m not an Emptoris apologist. Their gorilla marketing when Ariba swallowed Procuri was no different to Ariba’s swipe this time round. And Emptoris have (at least attempted to) apply for equally embarrassing patents in the past, if memory serves.
- I am not anti-intellectual property. But I think that software in general is more suited to copyright than patents. Far from encouraging innovation, as I’ve written before, business process software patents are a tax on innovation and should be stopped.
I once heard a business manager from a large, global organisation based in the UK speak about his dilemma about how to protect his IP globally. This is a summary of what he explained.
In the USA you can patent so-called “software business processes”. Perhaps the most notorious of these is Amazon’s 1-click ordering saga. In Europe the rules governing what software you can patent are much tighter.
So here’s the dilemma:
If you have a clever software business process then do you patent it in the USA? If you do make a patent application in the USA then all your competitors can now read that patent application and learn your special process. Your European competitors can even go ahead and copy that process with impunity, thereby lessening your competitive advantage in Europe.
Now, suppose you decide to go down the route of protecting your special business process by keeping it secret. You are now risking that one of your competitors may come up with the same process independently and that they might patent it in the USA. This would mean that the special process you were using is now subject to a patent owned by one of your competitors. You can no longer use that software business process in the USA, thereby lessening your competitive advantage in the USA.
What’s the answer? There isn’t a good one, unfortunately.
But this issue does highlight an important issue in the use of software patents globally.
My personal view is to hope for a brighter future where IP protection for software is covered more by Copyright rather than Patent protection. For three reasons:
- A piece of software is, in my view, more akin to a book than to hovercraft landing gear
- Copyright is automatic and so nowhere near as complex or costly to implement than a patent application, meaning businesses can focus on running their businesses rather than on retaining lawyers
- I’m not aware of any example where a software business process patent genuinely helped innovation and progress