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Intellectual Property, News - Written by Renai LeMay on Thursday, April 12, 2012 16:55 - 58 Comments
Is the CSIRO a patent troll? US debate turns feral
news An extremely harsh war of words between Australian and international technologists has erupted over a controversial new article published in the United States documenting evidence that Australia’s peak research body’s $430 million patent claim over 802.11 Wi-Fi technology might have been constructed on shaky ground.
The article, entitled How the Aussie government invented Wi-Fi and sued its way to $430 million, was published a week ago by established investigative reporter Joe Mullin, a reporting fellow at the UC-Berkeley School of Journalism on Ars Technica, one of the United States’ largest technology sites.
Broadly, it chronicles how Australia’s Commonwealth Scientific and Industrial Research Organisation had, using a carefully crafted legal strategy, won a series of global lawsuits over key patents it holds with relation to the 802.11 Wi-Fi standard used in virtually every mobile device produced at the moment, with a series of high-profile companies ranging from telcos like AT&T, Verizon and T-Mobile, to Microsoft, Hewlett-Packard and Dell.
Total revenue from the cases has now passed $430 million, leading to Australia’s Minister for Tertiary Education, Skills, Science and Research, Chris Evans, to pronounce several weeks ago that it was hard to imagine “an Australian-invented technology” that has had a greater impact on the way people lived and worked.
However, as Mullin documented in his article, opinions differ drastically on to what extent the CSIRO was actually involved in creating the Wi-Fi technology which is in such common use today. The Institute for Electrical and Electronics Engineers, a standards-setting organisation, created a working group for the evolving 802.11 standard in 1990, three years before the CSIRO filed its first patent in the area, and one of the key Australian engineers involved in the CSIRO’s work, Terrance Percival, has acknowledged in court that the team hadn’t invented any of the constituent elements of its wireless strategy.
It’s not the first time that the CSIRO has been criticised over the issue. Many global technology companies have fought the company’s claims on the Wi-Fi issue — with most ultimately losing, and an extensive article published in The Economist (no longer available online — it has been taken down over the past several years) has documented the fact that the history of Wi-Fi is far from simple, and that a common sense definition of where the Wi-Fi standard came from runs counter to the CSIRO’s position on the matter.
However, Mullin’s article has highlighted a key difference between Australian and US views on the issue.
A large number of Australians have strongly criticised the article online over the past week, defending the CSIRO and its patent litigation.
“Wow. Fuck Ars,” wrote one Reddit commenter. “Both articles border on racism as far as I’m concerned. To paint the CSIRO as patent trolls is fucking laughable. The first $205 million netted through the patent lawsuits was donated to the Science and Industry Endowment Fund. The author has not substantiated his claims that the patents were insufficient or not related to any of the 802.11 standards. The reality is that the CSIRO was encouraged to monetise their inventions. Yeah, US government research organisations have given away their stuff for free. Good for them. That doesn’t mean the CSIRO are patent trolls when they monetise their inventions.”
Wrote another: “As usual, the first thing to go missing are the facts … CSIRO is one of the world’s top research institutions. It is loved by Australians, and highly regarded in many fields by other scientists around the world.” The comments posted on Ars Technica by Australians are similarly vitriolic. “Consider it a small amount of payback for all the shitty IP laws you’ve exported to us, and the billions Australia has donated to the companies that bought those laws in your jurisdiction,” wrote one local.
“I’m getting a very strong feeling of sour grapes from the author,” another added. “CSIRO is one of the world’s top research organisations run and staffed by fantastic people. I have no doubt that the guys at CSIRO did come up with something worth patenting, and they’re entitled to go after companies that infringe on their patents, especially given the free trade agreement between Australia and the US. If we have to put up with the US’s bullshit patent system, the US can put up with ours too.”
Australia-based patent attorney Mark Summerfield, in response to Ars Technica’s article, published his own extensive history of the CSIRO’s Wi-Fi patents, concluding that the patents had been subject to a decade of intense scrutiny and had withstood all assaults on them.
“This really has been a David and Goliath(s) battle and – as in the original story, though perhaps less common in real life – David has emerged victorious,” he wrote. “We can now hope that the rewards of all this time and effort are invested in Australian research and innovation, and that some of the results will be equally successful. Congratulations are certainly due to all involved at CSIRO!”
However, a number of commenters predominately based in other countries highlighted wider problems with patents in general, such as the widely held belief amongst many in the technology industry that the broader patent system has the potential to stifle innovation. The extensive patent portfolios held by a number of large US technology giants — with companies such as IBM being among the most prolific holders of patents — have regularly been the subject of media scrutiny over the past few years, due to the legal action which they tend to stimulate. Just several weeks ago, for example, Facebook and Yahoo became enmeshed in a complex patent battle over the pair’s respective patent holdings, in a move which could affect Facebook’s upcoming public listing.
Mullin has published a follow-up article on Ars Technica responding to the criticism of his article.
My opinion on this matter is that there is a great deal of hypocrisy evident in Australia’s technology community when it comes to the issue of the CSIRO’s Wi-Fi patent holdings.
Broadly, I believe that much of Australia’s technology community is against patents in general. The reason for this is that there have been many cases where patents have stifled innovation locally, with giant US corporations often holding a mandate on the development of technologies which Australians would like to innovate around. In addition, Australian society contains a strongly egalitarian streak, and the idea that innovation could be stifled by software patents, in particular, has always attracted a great deal of opposition here.
However, on the specific issue of the CSIRO’s Wi-Fi patents, many people in Australia are quite intractable. Without looking at the specifics of the case, which do demonstrate that the CSIRO very carefully planned its somewhat shaky patent attack for maximum global impact (why else would the CSIRO file its patent test case in a small court in the remote jurisdiction of East Texas against a small Japanese company, Buffalo Technology), so many Australians just assume that the CSIRO’s argument is completely valid, simply because it throws one back in the face of the US multinationals.
In general, I like to see free and open debate on every issue that has relevance to Australia’s technology community. However, in this case I don’t feel that most of those Australians who are debating this issue are debating it legitimately. The level of backbiting and vitriol hurled at those who dare to criticise the CSIRO for its wide-ranging lawsuit relating to a very standardised and widely adopted technology is simply astounding.
It looks to me like the CSIRO has definitely done some stellar work in aiding the development of the 802.11 Wi-Fi standard, and there is quite a lot of evidence that Wi-Fi as we know it today would not have been developed as quickly without the agency’s work. But I remain unconvinced that the organisation did $430 million worth of development work, or that the global tech vendors which implemented the standard unfairly took advantage of the CSIRO’s work to an amount of that value. In addition, it seems relatively logical that the CSIRO’s methods would, in time, have been discovered elsewhere, as an organic progression of the standard.
I guess what I’m saying is: We should remain open to the possibility that the CSIRO has gone a step too far here, and not be too one-sided in our discussion of what is a very complex case. In addition, I think we need to take a step back and question how legitimate the patent system really is, when it allows this kind of litigation to proceed.
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