Sunday, February 21, 2010

No Good Deed Goes Unpunished – Dangers of Community Development

Over the last decade we’ve seen an explosion of channels for small scale organizations and individuals to create and release software applications and services to the world easily. XBox has their program where community created XNA games can be purchased on XBox live. Apple has their app store. New platforms, like Android, are encouraging developers to create applications for them. It’s not just about the big titles anymore, its about who has the widest number of appealing applications that helps a platform succeed (consider that you don’t hear too many developing for the Palm Pre).

What this has created is a developer community that may not be thinking from a business and legal standpoint though. The ability to create simple applications that collect, retrieve, and/or display data speaks to the creativity but doesn’t address the realities of our legal realm.

Consider the case of the developer who created an Android application to identify the city and state an incoming call was originating from. From the blog post:

So, I took some time this weekend to develop an Android application.  The application displays the city name and state someone is calling from.  This application is something I've wanted on a phone.  So I thought I would share!

He did what many geeks and software developers would do: he tried creating an application for a shiny new platform to see what the experience was like. At the end of it, he released it to the Android marketplace…for free.

As the saying goes: no good deed goes unpunished. He’s now being sued by a company that not only has a similar product available but also holds a patent for the process of displaying a city name and state on a screen. He provides links to the patents and the company on his blog post, but here’s the abstract from one of the patents:

An improved decoding and processing system is provided for advanced determination and display of geographic information to a called party relating to the call origination party. The improved system comprises a receiving means to receive the calling number delivery (CND) message from a local central office (CO) switch or mobile station switching center; a microcontroller storage and retrieval device containing a data base library for selectively determining the corresponding geographic information such as city and/or state by matching the area code and/or local exchange number received from the call origination party; and a readout device for displaying the city and/or state of the incoming call. Preferably, the system includes capability to automatically update the data base library of the storage and retrieval device as new area codes and/or local exchanges are subsequently assigned. Accordingly, the improved system provides the user with convenient and efficient display of geographic information related to caller identification that is capable of determining an ever-increasing number of area code and local telephone exchange numbers.

Some people would read that and say “That’s not an invention, that’s a requirements summary for a software application.” What’s interesting is the suggestion as to the origin of the patent, which isn’t the company that currently owns it. From

SEATTLE -- Cequint, Inc., a leading provider of Caller ID and call screening products for wireless, announced today the purchase of U.S. Patent No. 6,353,664, a pioneering patent on the display of location information for screening incoming and outgoing calls. The patent was purchased from LSI, formerly Agere.

Originally developed by Lucent in 1997, the patent represents a significant innovation in providing location information on a device for purposes of enhancing caller identification.

Originally developed by Lucent in 1997?! Back then the abstract provided definitely *was* an invention! We didn’t have the advances in software and platforms that we do now. The fact that this patent is even allowed to survive is further proof that the patent offices in North America haven’t kept up with the rapid change of technology and the changing definition of “invention”.

But this post isn’t about patent law, its about us as content/product creators and what we can learn from this man’s experience.

Names Are Important
Names we use, even for software we’re planning on giving away for free, are important. Very important. Companies spend huge sums of money every year ensuring that names, slogans, and images are protected under trademark laws.

Because of that, you can’t assume that the name you want to use is available to you. This is one of the issues for the creator of the Android app. He named his application City Caller ID. The company suing him has the name City ID trademarked. Two applications that do the same thing and have such close names is an obvious issue.

Know The Patents
In a book I read recently, the US author stated how the US is the most litigious country in the world. Unfortunately suing is not just a tool of justice, but part of the business game. Because of this, and because of the issues with patents being released for things that arguably aren’t true “inventions”, its important before you release anything that you check for existing patents and ensure that you’re not infringing on anything.

Is this extreme? Well, no. What we don’t realize is that when we release something into the market, even if its free, its now competing with other products in the market. We see the internet as a flea market, when really we’re entering the same marketplace as any established company. The platform creators don’t push this to the developers though, mainly because they want to encourage application dev and not create fear mongering that the next app published could be targeted for a lawsuit.

Don’t Hate the Player, Hate the Game
On a moral level, I absolutely disagree with the way the suing company is acting. They easily could have sent a cease and desist order first, assuming they believe that this application was released without the individual doing due-diligence and not meant to maliciously damage the company.

Regardless, the law is the law and they are within their right to bring this to litigation. If this makes you angry, and it should, then get in contact with your government representatives to push for patent reform. Note that we’re talking about the US mainly here, but all of what I’ve written applies to any country.

My hope for the software dev in this story is that there can be some sort of agreement between the parties that avoids this going to trial and any huge damages being levied against him. For us, this is a warning about what can happen when we don’t understand or respect the rules of the arena we decide to play in. It’s also a rallying point for us to push for rule changes to how we do battle within it.


1 comment:

W. Kevin Hazzard said...

I feel somewhat ashamed of the patents I received when I was a young developer. The company I worked for really promoted our writing them and we threw our shoulders into it dutifully like good, young lads. But many corporations use these algorithm-oriented patents in really predatory and frankly unethical ways, IMO. I agree wholeheartedly that many of these patents read more like software specifications than they do inventions. The problem is the broad application claims that some of these companies make. An ANI-based caller-id solution (not invention) in a now primitive telephone network has little to do with the means by which a simple invocation of a database query can be injected into a call event pipeline on a modern telephony-enabled operating system. And what is Cequint going to sue for? Damages? The guy posted the application for free. When that patent was written, probably in 1995 to have been awarded in 1997, nobody could have envisioned an ecosystem whereby some average, lone developer could distribute then seemingly advanced technology to millions of people with the click of a button. And that the engineering of that solution would be so simple. So is it google's fault for enabling this developer to commit the heinous act of violating Cequint's patent? Maybe they should try to sue google instead. Good luck with that one, fellas.