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.