Category: SMOS

Trolling on the human rights

If I were a patent troll, which universal human right would I start abusing next?

Patents and humanitarian activity (and how patents can kill humanitarian activity) have been covered on this blog before (see the SMOS project). I am in a slightly cynical mood, so I will now pretend to be a strategist for a patent troll (a “non-practicing entity”). How could I best abuse the world?

Note: I am NOT talking about the way big companies (like, say, Monsanto) are perhaps strong-arming the patent system. Compared to me, Monsanto are the good guys. They at least have at some point put some money into some R&D, and produce something. All I plan to do is to exploit quirks in the patent system.

I would want my target industries to have three key criteria:

  1. They have little or no experience with IPR, and none with trolls. The best attack is when the target has no idea what hit him.
  2. They produce things which every person needs to have. Ideally, things that are considered human rights. That way, the targets have no real option except to accede to my demands (or else break IP law).
  3. (Optional): Some type of vendor lock-in. This means that the customer is tied to one specific vendor for all his needs. Many people realize that the vendor can then abuse the customer at will. Most people do not realize that a troll can then abuse both the vendor and the customer at will.

An nice target list is provided by the UN’s Universal Declaration of Human Rights, especially Articles 25-26.  There are many potential attacks, but here I will focus only on a few novel ideas.

Article 25.

  1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
  2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Food / clean water

This is where I would strike, first and foremost, no hesitation.  Water-purification technologies are the choicest target because they fulfill all key criteria (they are essential, people don’t expect attacks, and there are lock-ins). Some target markets (for example oil-rich desert countries) are rich enough to provide considerable blackmail money.

Methods to create potable drinking water would be my number one focus. It is a high-tech activity, with serious companies doing serious R&D work. An overly broad patent (either created now, or bought from a suitable player, or an fire sale after a bankruptcy) could be a major block.

I would target companies close to a breakthrough, and file/buy a huge number patents around the same area. Here’s a secret: It doesn’t really matter whether or not the patents are truly valid. All one needs to do is to strike at a strategic moment, and announce that one has a hundred patents which company X is infringing. This is a typical troll strategy.

The strategic moment: the instant a major water-cleaning plant has started providing water to a large city (Dubai, Nairobi, Mumbai, Dhaka). Even a brief court injunction on the operation of a key water plant could be problematic to a whole city. The blackmail potential is very high.

(Normally, one would expect a reasonable government to act like India in the medicine case discussed below, and simply ignore the blackmail and the the injunction. However, consider an extremely poor and corrupt country with the leading elite fully tied to foreign interests… it might not do the sane thing).

Water distribution would be even more fruitful, since it is in practice impossible to set up a competing water and sewage network overnight. There is a definite vendor lock-in in that business. However, the technology is so simple that there is little IPR to abuse.

Medical care

Medical care would be a lucrative area for attack, but… filing spurious patents is difficult in this area. The major drug manufacturers are well protected by patent thickets.  There is also an active backlash against medical patents, which means that criterion 1 is no longer satisfied. Everyone is expecting attacks. For example, India is banning branded drugs. Governments and NGOS’s are already on their toes, unlike the water case. I would pass on this.

Communications

I would put communications in this category as well. I am not the only one; the ITU (the telecommunications branch of the United Nations) is waking up to the patent wars in the telecoms industry, and their effect on innovation (see for example here). This war was also addressed in our SMOS project.

The ITU initiative is largely an attack on patent trolls. A cynic might expect that since the big companies have deep pockets to affect the process, and governments have their own telecom industries to protect, the end result will be an even deeper monopoly on development by a few megacompanies, with no benefit for poor countries. Time will show.

In any case, while trolling the telecoms industry is currently all the rage, the competition is getting harsh, there is little chance for a surprise attack, and a serious backlash is likely. I would look elsewhere.

Motherhood and childhood

Childhood diarrhea is one of the worst killers in the world, and could largely be avoided by providing clean water and saline solution. A patent on a particular type of saline solution could provide interesting leverage to an utterly sociopathic troll. However, in practice it is relatively easy for medical professionals to work around the IPR by substituting slightly different components. Thus, while intriguing, the work-arounds make trolling difficult.

Article 26.

  1.  Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
  2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
  3.  Parents have a prior right to choose the kind of education that shall be given to their children.

(Distance) education

Low-cost distance learning technologies are interesting, especially as they provide a very low-cost alternative in extremely poor countries. The best course of attack would be cases where a given company has achieved an effective lock-in on the overall technology and has created a walled garden.

A walled garden means that one company controls all aspects of the material: the hardware, the software, and the content. Apple is the best-known example of this strategy,  followed perhaps by Microsoft and Google (whose lock-in does not extend fully to hardware though). The walled garden can create many type of problems for customers; for example, there have been cases where critically-needed applications have been pre-emptively deleted from the AppStore if Apple has feared litigation.

These companies have pockets deep enough to fight the trolls, but those same pockets can also bribe the trolls. I would frame the attack behind the scenes, making the problems appear to be the fault of the company, as in the AppStore case above. Since their brand names are absolutely crucial to them, they would be more  likely to pay off (though of course they also have armies of lawyers. The balance is difficult).

A public-service note: attacks like this could be avoided by using open-source solutions, or at least by minimizing vendor lock-in. A sure way to create problems of this type is to accept a walled garden, however attractive it might look in the short run.

Am I serious? Yes and no.

No. If I actually wanted to do this, I wouldn’t write about it. Profit is made by keeping absolutely silent and working in the shadows.

Yes. The basic principles are valid. The exact sample cases I’ve suggested might or might not work. I have outlined some techniques for avoiding attacks of this type (most importantly avoiding walled gardens), but where there is money, there will be trolls.

Rest assured: there are people out there thinking precisely along these lines. Globally, masses of people are now being downsized who have the competence for this, families to feed, and negotiable moral values.  (To be consistently cynical: I am among them. I could  be good at this. We all like to think we’re on the side of the angels, but we’re not).

If someone has good ideas on how to protect the world against them (us?), I would appreciate hearing those ideas.

UN

 

SMOS: Humanitarian Patent Pool

What would it take take to actually, truly start  a “Humanitarian Patent Pool” like Timo Tokkonen suggested in a posting last week? The idea being to collect certain patents in a non-profit “pool” to keep patent trolls away from ruining humanitarian efforts.  The question was inspired by humanitarian catastrophe communications (see SMOS web page). But there could be other areas.

Is HPP even vaguely realistic? Patents are powerful, but not all-powerful: the Doha Declaration allows developing countries to bypass existing patents for medicines when public health is threatened. A concept similar to HPP, defensive patent aggregation, exists in the commercial world, but to my knowledge not in a non-profit setting.

Here are some back-of-the-envelope estimates on how the HPP might work.  Bear with me if there are ludicrous errors, and please propose improvements.

The core purpose of the HPP must be to eradicate patent trolls in humanitarian areas. The purpose is not to hinder legitimate players. (This is immediately a controversial goal. Idealists will want to eliminate patents from the humanitarian field altogether. I feel it is sufficient to eliminate just the rabid dogs, and let the healthy ones thrive).

The HPP needs to be a non-profit foundation. It should be international in scope, but it might be sufficient to restrict it to the USA because that is the home of the patent trolls.

The key function of the HPP is to collect ownership of “bad” patents. By “bad” I mean something that is not being used to create anything, but can be used by a troll to stop development. A much more refined definition is obviously needed.

The main category of “bad” patent is one which is too broad and should never have been granted in the first place. Another category are patents for a technical solution which has become obsolete, but which a lawyer can stretch to cover some other technology. Such patents are lethal weapons in the hands of a troll. But they could also be lethal weapons in the hands of the HPP.

There are two key strategies.

  1. Containment and decay. Collect patents that are allowed to expire as soon as possible. The purpose here is to prevent trolls from making claims, and to create strong prior art against future spurious patents. These patents should for the most part be collected through donations.
  2. Active deterrence. Patents that can and will be used in litigation against trolls. In some cases, the HPP might consider paying for these. The cost of filing a patent is > 10 kEUR, so the HPP might be willing to consider buying them at cost.

The HPP should be aggressive, not defensive. Unless the HPP is willing and happy to go to court against trolls, it will have no deterrence effect.

Since the USA already has a well-oiled machine in the Electronic Frontier Foundation, it would make sense to tie the HPP in very tightly with the EFF, especially its Patent Busting Project.  On the other hands, in terms of funding, the HPP could have wider appeal and hence be independent.

The working principle needs to be absolute transparency. For strategic reasons, if preparing for an attack, the HPP may require secrecy. But even there things need become public when fight is over. As far as I can see, the HPP cannot ever accept secret agreements or settlements.

The focus areas for active deterrence must be chosen very tightly. They should be restricted to those areas in which humanitarian damage can be massive, and in which trolling activity seems to be particularly easy. Catastrophe communications would certainly be one such area.

The budget of the HPP simply cannot be kept small. Even if using only donated patents, there are legal costs associated, even if the patents are allowed to expire immediately. A reasonable minimum estimate is 1 kEUR per patent. Since there must be hundreds to thousands of patents in the pool, this easily results in a budget of hundreds of kEUR per year.

If some key patents are bought with hard money (though at cost), the cost per patent could be 10 kEUR. The number of truly crucial patents will be small — court cases are typically litigated over just a handful of patents — but knowing which ones a critical requires buying more.

The cost of stockpiling and maintaining the patents will easily climb to a million EUR per year. Unlike projects like the EFF’s patent-busting project, there is no meaningful way to crowdsource the idea. It needs hard money.

If the HPP goes to court, the legal costs are unpredictable, but the HPP must be able to handle them. This is where my reasoning becomes completely fuzzy. Could this work on a pro bono principle? If courts find trolls’ patents spurious, might they willing to force the trolls to pay costs? I find this highly problematic.

Is there any way for the HPP to make some profit to recoup all its losses? In principle, yes, by licensing to legitimate businesses. However, trying to make a distinction between non-legitimate and illegitimate players would add costs and make enforcement difficult.

And, more crushingly, the HPP would risk turning into a patent troll of its own. (“He who fights monsters should see to it that he himself does not become a monster”). It is difficult to see any way to make the HPP self-sufficient.

So where would the funding come from, then? I have no real idea. This was as far as I was able to get in one sitting.

So is the HPP idea even vaguely realistic? If not, would be worth developing from some other angle? If not, do we just have to adapt to life with the trolls?

 

SMOS: The Kiss of Death of IPR – another view

Since the publication of SMOS last week, we have had several discussions with different people about patents – whether patents are essential and does it really matter for a small company to have patents or not. The answer is, of course, yes and no. But even with yes, it is not always as clear as one might expect as Jakke presented in his previous blog.

What is today’s IPR about? It is about litigation, and litigation itself is a game of power and strategy. But even those rules are changing.

I believe that Jakke was a bit optimistic when he was looking at patents from their utility aspects. In practice they are much more.

I may be harsh with my statement, but to some degree patents are like weapons. They are everywhere and can be used both for good and evil. But when one is manufactured, you never know whether it will harm someone someday. For gun exports and trade, and ultimately war, we have regulations. But for using and transferring patents, and eventually litigations, not so much. I am not a lawyer, but for a small company or a single entrepreneur the unwritten rules of the game are quite literal.

Let’s take an example that company LetterZ finds out that company SillyNumber is infringing one of its patents. What will LetterZ do? Most probably it does its homework to know their own position and carefully document everything that works for them. And most probably it plans counter measures if SillyNumber has something against them. If SillyNumber is a small company, LetterZ can wait for it to grow. It is not good business to pay lawyers to sue companies that do not have money. Basically it is a time bomb that only company LetterZ knows exists.

Just like in warfare, the company can plan its strategy carefully over time before striking. With SMOS we would have had no idea who we might have been eventually facing. It would be polite to let the one infringing know and give a chance to change their approach, if possible. But as said, this is more about power and influence than being right. It is warfare.

Traditionally biggest headlines have been written about clashing titans. One party will either pay a lot and/or case ends in cross-licensing. During the last 10+ years there has been other, new type of development. Some companies acquire licenses after careful studies that someone (lucrative enough) is infringing exactly those patens. For the most successful suing companies it is enough to threaten the infringing party to keep the case out of courts. Some of such companies, patent trolls, don’t actually produce anything else than money.

Recent tactics has been to move away from the frontline clash of titans towards guerilla wars. Instead of suing the provider, suing e.g. individual hotels and restaurants for 5000 USD each, there is decent money to be made out of hundreds or thousands of cases. The sum has to be small enough that it definitely will not cover litigation and lawyer fees. Many companies may end up paying without putting up a fight, regardless of the actual case details. The threat and uncertainty are much bigger.

As courts may decide the compensation based on the number of devices made or sold that include infringing technology, corporations are separating their manufacturing and patents. Patents are turned into the hands of portfolio companies, who “do not have anything” to do with the originating company. There is only a licensing agreement, but no other relationship what comes to potential damage based on production numbers. Patents are truly becoming intercontinental missiles of the cold war era.

In August 2011 US Patent Office granted its 8 millionth patent. Two days ago, May 1st 2012, patent number 8 170 000 was granted. That is in the USA alone since the 18th century. There the growth of granted patents has been exponential since the early 1900s. It is a fact that nobody can tell what exactly has been patented and what other prior art exists around all those ideas. In principle all inventions are equal, big and small. We as people have just built and ended up with this kind of a system we face today. It probably is better than anarchy, but can it survive? Is it ultimately so that elephants have the right of way in traffic what ever the highway code says?

There are some efforts to change the status quo, for example https://www.eff.org/patent-busting, but there is much more to patents than corporations and litigation. It still is a possibility for the tiny to have their rights protected. Just as humans as a species have decided. To our knowledge ants do not have proprietary rights for certain lifting techniques, but people may have.

For an individual company patents may be crucial when seeking investments or selling the business. But should the system be reviewed and changed accordingly and be more than a weapon of distraction/destruction?

Do we need a common database of free ideas that are exempt from official patents that may be used for humanitarian purposes and collectively against patent trolls? Yes, I know I am reinventing patenting process just as labor exchanging communities are reinventing money.

But if data wants to be free, could some inventions be agreed to be free as well? It is for our own benefit after all.

SMOS: The Kiss of Death of IPR

For once I will be blunt: I now feel that with crisis communications hardware, the first whiff of IPR (patent) issues will cause the effort to crash and burn.  My opinion on this was certainly different before we started the SMOS project (see SMOS web page).

The idea of combining humanitarian technology and intellectual property sounds uncomfortable. After all, humanitarian activities are supposed to be humanitarian. Nevertheless, there were perfectly valid reasons to consider IPR issues with SMOS.
1. Protect the idea in order to make at least a minimal living from it.
2. Prevent others from destroying or profiting extortionately from the idea.
3. Improving interoperability with telecommunications providers by playing with the same rules (rather than adopting a “hacker mentality”).

I am a deep skeptic about IPR, but do not consider it fundamentally “evil” — it may have its place.  However, I am coming  to the conclusion that for the specific case of crisis communications, IPR is the kiss of death.

The numbers

Since we pursued the possibility of patenting quite heavily, I learned some ballpark figures.

  • To file and get a Finnish patent: 6000-8000 EUR. Most of this goes to the patent agency handling the application. There is no practical way to survive without a patent agency.
  • In Finland, a decision is usually rendered within a year. There may be interim decisions which require using a patent attorney, pushing up the price.
  • After being granted, the annual cost of maintaining a patent is small for the first three years, but starts rising rapidly after that.
  • To file and get a European patent, the cost is approximately twice of a Finnish patent. Maintenance costs are also roughly double.
  • A US patent requires using a patent attorney in the US. Overall cost is comparable to a European patent. In the US, a decision can take 5-10 years.
  • I have no idea what the costs would be in countries such as China or India.
  • A figure of 20,000 USD (or EUR) per patent is often used a lifetime cost, at least within a single country. However, for a catastrophe communications system, protection would be needed in multiple countries, some without an advanced IPR culture.
  • → If I had to give a single number, it would be 50,000 EUR per patent.

Realize, however, that a single patent has no practical value. To protect an idea in any significant sense, a dozen or more patents may be needed. If the IPR route is chosen, a cost of half a million just to file patents is realistic.

Note also that filing patents does not in itself guarantee anything. Anyone can infringe on a patent, and it is up to the patent owner to sue. Even minor court cases can eat up six-digit sums of money, and can be decided on the basis of a comma in the wrong place, even if the most expensive lawyers are used. Going the litigation route means risking millions on what is in effect a roll of the dice.

Even worse, in this particular case litigation is a no-win situation. If the other side is a local company in a developing country, it can (and most likely will, and perhaps should) take the role of a victim being bullied by large Western IPR interests and inhibited from trying to save lives. There is no real way to protect one’s public integrity in such a case.

We had one major rationale for the IPR route: we felt that by making hardware along commercial lines, it would be easier to arrange interoperability with operators. I am now highly skeptical about this. Interoperability would simply cause operators to view SMOS as a potential competition. It would take a major player 15 minutes to dig up enough patents from its patent thicket to make our life impossible. Whether those patents are relevant is completely irrelevant. The threat is enough.

The implications

I draw a harsh conclusion: any whiff of IPR will cause a humanitarian crisis communications project to crash and burn.

On the other hand, proceeding without a thought for IPR is troublesome for funding, since venture capitalists want to recoup their investments within a few years. Without IPR, there is less to recoup.

In the traditional way of thinking, having no IPR protection would be unthinkable because of the competitive issues. However, I believe I have demonstrated above that IPR does not actually give any benefit in this specific technology case.

What to do about this then? I am certainly not saying that crisis communications hardware projects are hopeless. However, it would be wise to pursue such projects with the (perhaps unwritten) attitude that IPR is the enemy.

An open-source approach seems appealing, and has been done successfully with software (for example Sahana). But hardware?  It is only possible to go so far with a “hacker mentality”; if there is a desire to use cellular telecom interfaces, then there is a need to cooperate with commercial providers as a commercial entity.

One of the few ways to actively defend a project of this type against patent trolls is to have a strategy of defensive publishing. In other words, publish all ideas as soon as someone blurts them out, ideally in the form of a permanent Creative Commons-licensed blog. This means that the blog becomes prior art, and the ideas can no longer be patented by anyone.

Other than that? Perhaps the best advice I can give is to look at the material on the SMOS project page, study what we tried to do in SMOS, and then try to not do that.

The SMOS project

When disaster strikes, could we airdrop small base stations and set up cell phone communications that way?  

See the previous posting to see where that simple question took us. (The post is long but entertaining).   Kalle Pietilä asked the question  in early 2011. Answering that question became an off-time project that occupied four of us (Timo Tokkonen, Jakke Mäkelä, Niko Porjo, and Kalle Pietilä) for many evenings and weekends in 2011-2012. The previous posting described the process; this posting summarizes the idea. See the SMOS project web page for technical information.

We named the project SMOS, for “SMS Our Souls”. The core of the concept is this: by cutting away all functionality except for SMS traffic, could one develop base stations so small, robust, and low-power that they could literally be sown from the sky in case of a major catastrophe? This extremely tight specification would mean that even if the modules are not actually airdropped, they will be small enough to be hand-carried anywhere by volunteers.

We pursued this as a potentially realistic commercial project, in our off-time and under the radar. We developed sales material, technology concepts, use cases, and business calculations, pitched the idea to various places, and looked for funding sources.  By early 2012, it became clear that no traditional start-up business case existed. We decided to abandon the project (at least for the foreseeable future) due to reasons described in the previous posting.

We were then faced with two choices: pretend we never tried and hide our “failure”, or publish what we did find in case someone else finds it useful. We opted for the latter.

We are releasing the relevant material under a Creative Commons license (CC-BY), which means that others may use the findings freely (including commercial use).

Project web page: Click here.

Since we had discussions with some commercial partners, some information needs to be redacted because of confidentiality and trust reasons. Also, we are still a little behind on  cleaning up some of the technical material,  but we will get there in a week or two.

Just as we were putting the finishing touches here, we heard of a new startup called Tethr, which is trying to do very similar things. Please read the BBC article on them, and do join their mailing list. We have great hopes for them.

Below is the text of the one-pager  (pdf: SMOS 1 One-pager) that we used to open discussions on the idea. No real solutions are proposed here, just questions.

THE “SMOS” SOLUTION: ONE-PAGER

After any natural or man-made catastrophe, the first few hours and days are crucial. Before real recovery efforts can begin, it is necessary to set up a communications system to coordinate the efforts. Disaster communication systems exist for emergency officials and aid workers.

For normal citizens, mobile phone networks are becoming an increasingly useful way of communicating, as well as being a potential information source for rescue efforts. Just knowing the number of active mobile phones can allow the authorities to focus rescue efforts. Even developing countries have high mobile phone penetration, and thus the number of phones is a reasonable proxy for the number of victims. Although the batteries of mobile phones will be depleted, for the first few days the majority will still be active.

However, even mobile phone networks can be destroyed or overloaded when the catastrophe is severe enough. The SMOS Initiative is proposing a solution to enable partial mobile phone connectivity even when the normal infrastructure is not working. More specifically, it is simpler to restore text messaging (SMS) services than full voice service. An SMS service would allow victims to communicate with their families. At least as importantly, it would allow emergency organizations to receive and send information straight to the victims.

If it is accepted that the temporary network only transmits SMS traffic, then the required hardware could be simplified and miniaturized compared to normal cellular telephone base stations. The target of the SMOS Initiative is to define a “base station” small and rugged enough to be aerially deployed, so that one volunteer with a private pilot’s license and a small airplane could quickly restore telecommunications over a huge area. Even if aerial dropping is not possible, the small size means that they are easily portable by other means.

Once the base stations are dropped, they automatically form a network for mobile phones to transmit and receive SMS traffic. The base stations are powered by batteries that give the station a lifetime of about a week (after which normal wireless infrastructure is assumed to be in place).

The proposal still has multiple open technical issues, and the economic, logistical, and political challenges are also formidable. The idea is therefore presented as a discussion paper, aiming to open debate on whether such a system could in fact be practical and useful.

Note (April 2012): The project has been discontinued in its present form, as no commercially feasible way of implementing it has been found.

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