In a post at "the H" HTC and Samsung where criticized for paying patents to Microsoft for its Android devices. The author argued that this is a problem for the open source community and questioned if Android is open source then.
From my perspective there is a common mix up of rights; the right to the solution and the right to the implementation.
Lets start with the basics. In general, a patent protects a solution to a problem. The solution and problem comes in pairs ans is equal as important. For example, Apple have patented the usage of glass stairs for promotional purposes, which does not imply that Apple have the sole right to glass stairs – I am allowed to build on at home if I like.
This opens for tweaks; Motorola patented answering the phone when the hatch as opened (first generation Motorola GSM phones with credit card sized SIMs) while Ericsson patented that the hatch was opened when the phone was answered, almost the same from use perspective – opening the hatch and answer the phone is one move.
So, what all this thing about Android and patents. How can we develop and manufacture a GSM, 3G, or LTE phone using Android or Linux completely free from patents? The answer is simple – you cant.
Patents in Telecommunication
Telecommunication is a complex world of technologies where we (the users) are spoiled with features and availability. The Erlang Language developed for Telecommunication systems has been developed with 99.999999999 % availability in mind, which leaves only a fraction of a second per year of downtime. We, the users, have a ever growing expectation of the data transfer rate in our systems and those does not come for free. A hand full of telecommunication companies have developed the standards and put a lot of effort in them – and they need to get payback or there will be no money to develop the next version or generation of communication. And to be honest, we, the users, are very greedy of the data transfer rate and many of us are prepared to pay moderate Euros to get it, takes it for granted and whines when we travels on the country side where the coverage are low or we have to manage without 3G.
To generate payback, the companies developing the standards also patents the technology solutions needed to comply with the standards to generate revenue and founding for next generation communication systems. This way license fees for the patents boils down to us end users to pay and, which I think is reasonable, the ones using the telecommunication networks are paying for the development of the same. This does not only applies to network equipment, it also applies to the cell phones. Nokia and Ericsson knows that Apple needs to use patented technology if Apple claims to have a 3G cell phone. Either Apple purchases technology from a manufacturer that in turn pays the license fee, or Apple develops own hardware and needs to pay themselves.
The smart phone
A modern smart phone commonly consist of two parts; the modem side and the application side. The modem side is perhaps not widely known but is where the telecommunication takes place. This is where the aerial is connected, and where transmission over the air is managed. This is also where telecommunication have protected the technology, hidden from the every day user (trust me, this is pretty advanced signal analysis, the only course I never understood) .
The other part of the smart phone is the application side. Once the application side was the home of menu systems; the user got accustomed to the menu system from Nokia or Sony Ericsson and when it was time to chose next phone this was an argument to stick with a phone from same same vendor. This was true until iPhone was released and Android started to compete.
With the iPhone and Android the application side was suddenly not a simple menu system but a windows manager adjusted to touch usage (i.e. no keyboard or mouse). This was a step closer to the ordinary world of desk top computing, a step also bringing the patents from the desktop world. Also in the world of desktop software and computing there are people putting Euros into research that they expect to get revenue from, and solution to problems are protected by patents. Sometimes we got accustomed to inventions in the user interface as well. There must have been someone that invented the mouse, or the touch screen. Someone invented the usage of graphical user interface and was in the right to protect those inventions by patents.
The problem that arises with Android phones is that mainly Microsoft, Nokia and later also Apple put a lot of effort in developing smart phones before Android hit the market, or even the lab. I have an early Ericsson PDA with Windows CE 3 or so lying in a drawer. There where at least 2 generation of Symbian released before Android and naturally the effort put in by Microsoft, Nokia, Ericsson et.al was protected where feasible. Protected not only for a future revenue but for trading of patents related to the communication standard. An example (totally made up by me): if Nokia, Ericsson and Samsung develops LTE and have a round 5000 patents each they can trade; if I use 5000 of your patents tat I need, you can use 5000 patents from me that you need. And Acme Phones that never bothered to put a dime in the research has to pay all three companies for using the 15000 patents in LTE. And the Acme phones will be €5 more expensive for the customer and this is why the customer shall rejects those phones and prefer the other three.
As end user I put a lot of trust in every day technology. This text is written in the autumn sun outdoor on my laptop running Linux. And despite the open source operating system, Libre Office, XFCE windows manager the core is from Intel and is protected by patents.
Interesting as it might be, lets get to the open source point.
Solution versus Implementation
My point is that the patented solution to a problem is in general a conceptual solution to a problem, not the implementation of the solution. In order to enter the telecommunication market with open source technology we must first understand the role of patents on the business area, and we must understand the difference between solution and implementation.
Take the patent of answering the phone when the hatch is opened. This implies that the user opens the hatch, that the phone detects that the hatch is being opened and answers the call. However it does NOT make any assumptions on the design of the hatch, nor about the hatch sensor, not even that there shall be any sensor. The patent protection concerns the solution not the implementation.
The distinction is important. Most of the software developed by the open source community solves problem that is also solved by the closed source business actors. I have a mouse-menu in XFCE and there is a start menu in MS Windows. I have a save as dialog in KDE and there is a Save As dialog in Mac OS. The similarities cannot be ignored and is not a result of open or closed source code, it is a result of the current usage culture. If someone had the patent to use a imput dialog for user interaction when a file name is required it would be of no importance if the implementation was in open or close source code. It would, how ever, be of importance if the solution was distributed or if only the source code (i.e. source code not yet compiled into a working solution) was distributed; we as individuals are free to break patents on a personal base. This is why some Linux distros does not contain MP3 decoders until after the installation. This is why I am happy running Gentoo as my main Linux distribution.
Way Forward: Appreciate the Solution
The question remains, what can the open source community do?
The answer is as simple to pronounce as it is difficult to achieve; focus on open source solutions instead of open source implementation, and protect the solutions like patents.
The community must start to appreciate bare solutions submitted to the community. Finding new solutions is what can compete with patents. For each and every one of us we must search to find the joy of develop code that is part of a solution developed by someone else, and allow that someone to be a inventor not necessary a code writer. To be honest, what I see of the community is that code matters and solutions mostly matters not (unless implemented). Until we accept that the implementation does not affect whether a solution is patentable or not we will suffer from the commercial world and their habit of patents.
When I read about the patent rages between Google and Apple I must admit that Apple have put efforts in inventing solution of user interaction sing a small display and touch screen. The community must then make own competitive solutions within the same area. The same problem must be solved using another solution. If Apple have patent on dragging a symbol over the screen to unlock the phone, we must come up with another solution for unlocking the phone. Or we must tweak the problem; do we really lock the phone or shall we do something else to prevent it from unexpected input?
One world
Our open source community exists in the same world as the closed source and we all live by the same set of laws. Those are the laws that regulates the car industry to produce cars we can trust, and ensures that medical equipment does not harm us when we need them. And it allows and encourage companies to make money on developing new technology. I hope you paid salary thus making use of the economical system. We cannot stand outside those regulations but we can be smarter and we can invent solutions that is now owned by greedy companies.
I believe that we can do this if we learn to appreciate the value of good inventions and solutions.
